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SAM HOUSTON 

From the portrait painted while he was a U. S. Senator, which 
hangs in the Rosenberg Library in Galveston. 



Governors Who Have Been, 



and 



Other Public Men 
of Texas 



NORMAN G. KITTRELL 



HOUSTON, TEXAS 

DEALY-ADEY-ELGIN CO. 

PUBLISHERS 

1921 






Copyrighted 1921 

By Normau Q. Kittrell 

Houston, Texas 



SEP \o I'dd 

0)C1.A624830 



rv. I r » 



In ®okp« of Affrrtiott 

"Which cannot be told in words, or 
shadowed forth in language." 

THIS HUMBLE VOLUME IS 
DEDICATED TO MY WIFE 

Louisa Blackledge Kittrell 

In whose veins, — and in the veins of our 
children, — I am proud to know there flows 
blood kindred to that which flow^ed in the 
veins of "Davy" Crockett, who with his 
heroic comrades on Sunday morning, March 
6th, 1836, consecrated the Alamo to historic 
memories forever when they lifted the 
standard of human valor to a height never 
before or never since reached, wrote in 
their ow^n blood their own passports to 
immortality, and by their matchless hero- 
ism—using the language of one who was 
once Governor of Texas: 

"Taught mankind the lesson of earth's 
loftiest martyrdom." 



^nh^x to Ctjaptera 



Chapter I. 
Early Legislators and J. Pinkney Henderson 9 

Chapter II. 
Ashbel Smith 16 

Chapter III. 
George T. Wood, P. H. Bell, E. M. Pease, John W. Harris- ... 24 

Chapter IV. 
Sam Houston, H. R. Runnels, Edward Clark 29 

Chapter V. 
Frank R. Lubbock 32 

Chapter VI. 
Oran Milo Roberts 37 

Chapter VII. 
Pendleton Murrah 45 

Chapter VIII. 
Andrew J. Hamilton, J. W. Throckmorton, Edmund J. Davis 46 

Chapter IX. 
State Convention of 1873, and The "Semicolon Case" 55 

Chapter X. 
Richard Coke 61 

Chapter XI. 
State Convention of 1876, and some of the nominees 68 

Chapter XII. 
Richard B. Hubbard and others 78 

Chapter XIII. 
T. R. Bonner as Speaker of the House and D.U. Barziza 84 

Chapter XIV. 
John Ireland and G. W. Jones 89 

Chapter XV. 
L. S. Ross and D. C. Giddings 95 

Chapter XVI. 
James S. Hogg 100 

Chapter XVII. 
Gustave Cook, Soldier — Orator — Wit — Jurist 106 

Chapter XVIII. 
State Convention of 1894, and John H. Reagan 112 

Chapter XIX. 
Chas. A. Culberson, J. W^ Bailey and Joseph D. Sayers 118 

Chapter XX. 
S. W. T. Lanham 124 

Chapter XXI. 
Thomas M. Campbell, Oscar B. Colquitt, Jas. E. Ferguson 

Thomas H. Ball 127 

Chapter XXII. 
William P. Hobby and Pat M. Neff 132 



INDEX TO CHAPTERS-Continued. 

Chapter XXIII. 
Early Texans and Their Descendants 134 

Chapter XXIV. 
East Texas Men 140 

Chapter XXV. 
The Judiciary of Texas 170 

Chapter XXVI. 
Judiciary, continued 178 

Chapter XXVII. 
Judiciary, continued 183 

Chapter XXVIII. 
Judiciary, continued 190 

Chapter XXIX. 
The Supreme Court on Its Own Disqualification 202 

Chapter XXX. 
The Court of Civil Appeals 204 

Chapter XXXI. 
The Commission of Appeals 206 

Chapter XXXII. 
Alexander Watkins Terrell 208 

Chapter XXXIII. 
Court of Criminal Appeals 211 

Chapter XXXIV. 
The Tragedy, The Pathos, and The Humor of the Court Room 219 

Chapter XXXV. 
Memories of the Court Room 247 

Chapter XXXVI. 
Memories of the Bench on the Circuit 276 

Chapter XXXVII. 
The Trial Court and the Upper Court 281 

Chapter XXXVIII. 
The State and the Defendant 285 

Chapter XXXIX. 
Legal Victories 290 

Chapter XL. 
The Court, the Bar, and the People- 295 



Jfnr^mnrb 



This modest volume is neither historical or biographical in the 
ordinary acceptation of those terms, but is a record of incidents 
and events associated with those whose characters, and whose 
services to Texas, render them worthy to have their memories 
perpetuated. 

The reading of it will reveal no attempt at "fine writing" or 
any studied order of arrangement. 

The writing was done ciirrente calamo as incidents were re- 
called, or memories recurred to my mind. 

It is the fruit of labor done in the early morning hours, and 
far in the night, and in other hours which did not belong to my 
employer, the State. 

I thought it would be worth the time and toil to perpetuate 
such incidents and events in the lives of many of the men whose 
names are honorably associated with the history of Texas, as 
would inform this generation what manner of men they were. 

The present is always debtor to the past, and this generation is 
debtor to their generation beyond its ability ever to pay. 

The unofficial actions of men, and purely personal incidents 
in their lives, often serve to reveal more clearly their true char- 
acters than do their public actions; therefore, I have set down 
incidents, historical, tragic, pathetic and humorous, but not one 
that even remotely reflects unkindly upon any man. 

It seemed to me, too, that brief sketches upon such cognate 
themes as the summary of contents reveals, might prove inter- 
esting, amusing, and perhaps instructive. There will not be 
found in the book a line or word to which any living man, or 
the friends of any dead man, can take exception; because it is 
free from anything controversial, and free of even the semblance 
of criticism. 

My father was in public life in Texas as long as sixty-five 
years ago, and much that I have set down I heard from his lips. 

It seemed to me most fitting that the frontispiece should be the 
"counterfeit presentment" of the majestic and impressive figure 
of him whose name and whose deeds are woven in imperishable 
colors in the very warp and woof of the history of Texas. 

I deem it proper to state that delay in publication for something 
like three months after the "copy" was ready for the printer was 
the result of causes which were entirely beyond the control of 
either the publishers or myself. 

The fruit of my often-interrupted and desultory labor, pro- 
duced almost wholly from memory, is put forth in book form with 
the hope and belief that it will be accorded by every fair and 
generous reader that measure of charity which its many imper- 
fections will demand. 

NORMAN G. KITTRELL. 
Houston, Texas, 
Sept. 15, 1921. 



GOVERNORS WHO HAVE BEEN, AND 

OTHER PUBLIC MEN 

OF TEXAS. 



CHAPTER I. 

This is being written just as Texas lias passed through the throes 
of a second primary election, and when she faces the ordeal of 
the final campaign preceding the determinative election of Gov- 
ernor, in November, and it appears to me to be an opportune time 
to recall the memories which cluster about the names of those who 
have held the office of Governor in days gone by, but whom death 
has removed from the stage of action. 

There were some remarkable men among them, and while some 
of them passed away before I ever heard of them, or was old 
enough to remember, traditions concerning them still linger, and 
it has been but a few years since many men were living in Texas 
who knew all of the early Governors of the State. 

I do not recall that I ever saw any of them. The first Governor 
that I ever saw, except Sam Houston, was Hardin R. Runnels, 
and I saw him when I was but a mere lad. The proportion of 
Texans to become Governor has, of course, been very small; but 
there were many other men of conspicuous ability, and high 
character, who at the bar, on the bench, and in other spheres of 
honorable activity, so lived and wrought as to render their names 
and lives worthy examples of patriotic and honorable service. 

It has been said that biography is at once the most interesting 
and most instructive form of literature, but it is not my purpose to 
attempt to write a biography, or even a biographical sketch of 
any man. My only purpose is to set down in simple form, with- 
out any attempt at literary adornment, such traditions as I re- 
call, and such memories as occur to me, and such incidents as 
I have heard were connected with the names of some of those 
who lived nobly, served faithfully, and "passed on." 

Some diversion and relief from the ceaseless labor of judicial 
position is necessary, and I hope to find it in writing currente 
calamo, in those hours which do not belong to my employer, the 
State. 

There were instances in the lives of many public men in the 
early days of Texas, some of which were pathetic, some amusing, 
some heroic, but all of which served to reveal what manner of 



10 GOVERNORS WHO HAVE BEEN 

men they were, better and more clearly than did their official 
actions. 

My father, nearly seventy years ago, was in public life in Texas, 
as he had been in North Carolina and Alabama at an earlier day. 
He served in the Legislature of Texas with many public men 
whose names are enduringly graven on the pages of Texas his- 
tory. In his day and time it was considered a greater honor to go 
to the Legislature than it is now considered to go to Congress, 
and the Legislature of that day, in point of ability, and all the 
essential equipments of statesmanship, stood second to none in 
the United States. The mileage and per diem was given no con- 
sideration, and if I recall correctly, there was no limit to the 
length of the session. Many of the members drove from their 
homes in carriages, and kept their carriages and body servants 
here in Austin during the entire session. My father always did so. 

I have heard him tell over and over again of many interesting 
experiences while he served in the House, and heard his expression 
of opinion of many public men he knew. He was never defeated 
for a legislative position in any State, yet he never offered for 
the Senate, because, as he said, there were not enough members 
in that body. 

I heard him after he had retired from public life, and at 
the most impressionable period of my life, talk of his experience 
and the acquaintances he had formed, and I have never forgotten 
what I heard him say, and shall set it down in simple, colloquial 
phrases, without attempting to follow the chronological order of 
events. I have no literary plan or order of procedure mapped out 
in my mind, nor shall I attempt to write of all those who were 
contemporary in one connection. As I recall incidents, or mem- 
ories recur, I will set them down without regard to the lapse of 
intervening years. 

The social habits, customs, usages and standards which pre- 
vailed three score and one-half years ago were very different 
from those of the present day. Social drinking was an almost uni- 
versal custom, and it was often the case that men of high pror 
fessional and political standing used intoxicating liquor, at times 
to excess. That offense against the social code was overlooked 
and condoned to an extent that it would not be now. The sa- 
loons did not close on election day then, and I recall that who- 
ever got the influence of the saloons had half his political battle 
won. My father was an exception to that rule, for he would not 
have gone into a saloon or taken a drink, or treated a voter to 
a drink of any sort, for every vote in his district; and I trust I 
may say, without violation of the canons of propriety, that in 
that regard — if in no other — I followed his example when a con- 
didate for office, without deviation. 

Many public men played cards and made no concealment of the 



AND OTHER PUBLIC MEN OF TEXAS 11 



fact. Gentlemen did not, as a rule, as I have heard, often risk 
their luck at banking games, but many of the highest order of 
ability, and who were influential and useful in the councils of 
the State, were addicted to the great American game, and con- 
stantly indulged in that most fascinating diversion; but they 
were not subjected to criticism, nor did it weaken their hold on 
popular confidence. 

Men can be judged justly only in the light of their environment 
and of the prevailing customs of their day and time. That was 
tolerated then which would not be tolerated now, yet the standard 
of service and fidelity to duty in political station is no higher 
today than it was then. 

There has been a time when it was said that in other states 
poker games were used as an indirect method of bribery, but no 
such pernicious element entered into the game when it was played 
by Texas Legislators, in the days of which I write; so far as I 
have ever heard. No one ever sought by any such method of pro- 
cedure to influence legislative votes in that day and time. If 
the faintest breath of scandal ever attached to the name of a 
Texas Legislator, I never heard my father mention the fact. Many 
members might take drinks, many might play poker — some do 
both, but there was never a lobbyist brazen or bold enough to dare 
approach one of them with any proposition that was not con- 
sistent with the most rigid rectitude in legislative station. They 
were as unpurchasable a body of patriotic public servants as 
ever enacted laws for a great state; and there was not one of 
them who did not leave behind him an honorable record as a 
Legislator. 

As striking evidence of the fact that a majority of the Texas 
Legislature three score and a half years ago had respect for re- 
ligion, and admiration for a man who consecrated himself to 
preaching the old and simple gospel, and to the service of his 
fellow-men, the following incident will show. 

There died in Austin, while on a visit to that city, on December 
10, 1856, Rev. Daniel Baker, in whose honor Daniel Baker College 
at Brownwood was named, and who founded Austin College, 
which was first located at Huntsville, where the original col- 
lege building now forms a part of the physical property of the 
Sam Houston Normal School. 

The corporate institution and its physical equipment is now 
located at Sherman, where it is doing a great educational work. 

I knew personally a number of men who rose to distinction 
in public life in Texas who were educated at Austin College, when 
it was located at Huntsville. 

Dr. Baker never held any public office. He was simply an 
earnest, devout, consecrated preacher of the gospel — a mission 
more exalted than any of a political nature. 



12 GOVERNORS WHO HAVE BEEN 

Immediately upon the announcement of his death my father in 
the House moved that adjournment be at once taken in honor of 
his memory, and followed the motion with the following remarks, 
which I take (what I trust will be deemed) pardonable pride in 
reproducing here : 

"It becomes my painful duty to announce to the House the 
sudden and unexpected intelligence of the death of one of Texas' 
public benefactors; the Rev. Daniel Baker is no more! This sad 
intelligence burst upon us so suddenly and unexpectedly, that it 
has been difficult to realize the truth. I could not believe it until I 
visited the chamber where this great and good man, this venerable 
father in Israel, died. I have laid my hand on that cold and marble 
brow, have gazed on that face which I have so often seen lit up 
with animation and life, but now stamped with the cold impress 
of death. I have pressed that hand which I have so often grasped 
before in the warmth of friendship and affection, but now stif- 
fened and cold. I know that he is dead. As a general thing, I am 
opposed to the obtrusion of our private griefs on this house to the 
interruption of business; but I consider the death of Dr. Baker a 
public calamity. He is justly entitled to the claim and rank of one 
of Texas' benefactors.^ His exertions and usefulness were confined 
to no particular localtiy, no limited sphere. Possessed of a cath- 
olic spirit, of universal love and benevolence towards his fellow- 
men, he was prompted thereby to extend his sphere of usefulness 
as wide as possible. There has been scarcely a State in the Union 
but has heard his eloquent pleadings in behalf of religion and all 
the great moral interests of society. Twenty years ago I knew the 
deceased in Alabama. He was then the same devoted, enterprising, 
assiduous man and minister that he has been here; and since the 
scene of his usefulness has been transferred to this State, we all 
know with what untiring efforts he has exerted himself, not only 
in the cause of his Heavenly Master, but especially in the cause of 
education. He has left proud monuments in proof of these truths, 
and in honor to his memory. There stands not two hundred miles 
from this place, on the brow of a lofty summit, a beautiful edifice, 
surrounded by shady groves and academic walks. In it is opened 
a fountain of science, at which near one hundred youths daily 
drink. This edifice is Austin College, reared principally by the 
noble exertions of the lamented deceased, whose loss we are this 
day called to mourn. But, while these monuments stand, and I 
hope they may long continue so to do in honor of Dr. Baker, he is 
gone! Let gentlemen vaunt their cobweb systems of infidelity. 
Let them hug to their bosoms their Voltaires, their Bolingbrokes, 
and their Humes, and pillow them under their heads, but give me 
that pure system of Christianity which will enable me, when my 
last moment comes, calmly and quietly to consign my spirit to Him 
who gave it, as did our friend." 

The motion was adopted and the same action was taken by the 
Senate. The concluding words of my father were prompted by 
the fact that the very last words of Dr. Baker were, "Lord Jesus, 
into Thy hands I commend my spirit." 

When my father in later years came to respond to the summons 
of the inevitable and resistless messenger, who sooner or later 
comes to every man, he "passed on," sustained by the same faith 
which consoled, comforted and assured his friend, Dr. Baker. 



AND OTHER PUBLIC MEN OF TEXAS 13 

So far as I recall, never before or since did a Texas Legislature 
by formal action pay honor to the memory of one, whose only 
claim to respect was that he was a preacher of the Gospel. 

In the late primary election, there were more than 450,000 
votes cast, while in the election of 1845 there were 9,538, of which 
General J. Pinckney Henderson received 7,853. He was the first 
Governor of Texas after annexation. His immediate predecessor 
as chief executive, was Dr. Anson Jones, the last President of the 
Republic of Texas; an able, unselfish and patriotic man. His 
grandson, the Hon. Charles Eliott Ashe, has for twenty years 
filled most acceptably and efficiently the position of Judge of the 
Eleventh Judicial District of Texas. 

Governor Henderson would have risen to distinction in any 
State, because he was dowered by nature with the elements of 
leadership. The late Governor Roberts knew him personally and 
intimately. They lived in the same section of Texas, and practiced 
in the same courts, and when Governor Roberts became District 
Judge, General (he was so called as I understand) Henderson 
practiced before him. Governor Roberts was a competent judge of 
ability in men, and I heard him say on one occasion that J. Pinck- 
ney Henderson was the ablest man ever in public life in Texas. 

The Mexican War came on during Governor Henderson's admin- 
istration and he left the Governor's office and took a command to 
Mexico and bore himself so gallantly on the field of battle that he 
won the warmest commendation from Jefferson Davis, under whom 
he served. "Praise from Sir Hubert is praise indeed." He be- 
came a general in the army of the United States while yet Gov- 
ernor. It was said he refused to draw a penny of salary from the 
State while in military service. 

When the war closed, he resumed the office of Governor and 
served out his term, not seeking re-elction on account of impaired 
health. He retui'ned to his law practice, but if I am not mistaken, 
was, on the death of General Rusk, chosen his sviccessor in the 
United States Senate, but death ended his career a few days after 
he had taken his seat. During the days of the Republic, and 
shortly after its organization, he was sent as envoy to the Court 
of France. It was during the reign of the Louis, who was King 
of France between the death of Napoleon in 1821 and the accession 
of Napoleon the Third as Emperor of France in 1853. General 
Henderson met many skilled diplomats in that royal court, but the 
lawyer from the piney woods of East Texas upheld the dignity 
of his great station, and reflected the highest credit upon himself 
and upon the young republic he represented. 

He served the Republic with great efficiency in other stations, 
and was one of the Commissioners who conducted the negotiations 
preliminary to annexation. 

He came to Texas, as well as I remember, in 1836. He was a 



14 GOVERNORS WHO HAVE BEEN 

man of very wonderful oratorical ability and had the power of 
fascinating audiences and thrilling them with his eloquence, and 
in that day and time a man who possessed that power, coupled 
with even a moderate amount of legal ability, was destined to 
succeed in a new country like East Texas was at that time, and the 
success of General Henderson was conspicuous, because he was 
both eloquent and able. 

Under the conditions in which he began life in East Texas, it 
was often the case that something more was required than elo- 
quence and legal ability. 

A good many years ago, some gentleman whose name I do not 
now recall, but whose statement I accepted without question, re- 
lated to me the following incident in the career of General Hender- 
son. His home was in San Augustine, but as I recollect, he was 
attending court in some other county of the district. As he 
started one morning to the court house, located in the public 
square, he was stopped by a friend and told if he went to court 
he would do so at the peril of his life. The General was astounded 
and asked for an explanation. His friend told him that the only 

explanation was that (naming a man whose reputation 

as a "bad man" had been already established), had threatened 
to kill him and was waiting to do so. The General said, "Kill me? 
"What for? I have never done him any harm." The friend replied, 
"That makes no difference. He will kill you all the same." The 
General then said, "I have a family to support and cannot afford 
to be besieged in this hotel and kept away from the court house 
because a man whom I have never harmed is waiting to kill me 
without any cause. But what shall I do?" The laconic reply of 
his friend was, "Kill him." The suggestion of that dire alternative 
to a man who had been reared under wholly different conditions 
was shocking; but his friend had spoken the truth, and the General 
acted upon the targic suggestion and "removed" the man who was 
preparing to assassinate him; and calmly proceeded to the court 
house and entered upon the trial of a case. 

He was justified both by public sentiment and by the law and no 
reproach attached to his action. No man who could not fearlessly 
rise to the demand of such a situation in that day and time was 
fitted for active career at the bar of East Texas. The typical "bad 
man" was present then on the border of civilization, as he has 
always been, and it was the misfortune of a gentleman to be com- 
pelled to rid the community of one of that class, though he did 
thereby render a public service. 

It is not meant by this statement to even intimate that there was 
none but a rude, uncultured class in East Texas in that day and 
time, for such was by no means the case. On the contrary, many 
men and women, of education, culture and refinement, dwelt in 
that part of Texas, even in that early day. 



AND OTHER PUBLIC MEN OF TEXAS 15 

When the Rt. Rev. Alexander Gregg, who for thirty years was 
Episcopal Bishop of the Diocese of Texas, was ordained in South 
Carolina in 1859, he came at once to Texas, and I have heard him 
say that in that day he found a number of families in the San 
Augustine and Nacogdoches territory that in way of refinement, 
good breeding and social graces, compared favorably with the 
splendid people among whom he had been reared in South Caro- 
lina, who were the very highest type of Southern people in that 
day and time, which is to say they were the highest types of the 
human race. 

I do not mean to make any inviduous comparison of any one 
part of the State with another, but the good people of that mar- 
velous realm called "North Texas," often poke good natured fun 
at "East Texas" by calling it "The Sticks," and old East Texas 
is entitled to have all the facts that are in her favor stated, and to 
have her day in court. 

Conceding for the sake of argument — but not as fact — that North 
Texas year in, year out, is the best farming section of Texas, never- 
theless it should be kept in mind that the noblest product in any 
land is the men it brings forth, and in that regard East Texas 
stands in unchallenged pre-eminence above any other section of 
Texas. Lest some reader of this may be disposed to treat this 
statement as a glittering generality not susceptible of being proved, 
I will set forth later a list as I recall the names from memory, of 
those who in the last four-score years and more, so to speak, have 
gone out of East Texas into more or less exalted spheres of service, 
and further on I shall relate such instances connected with the 
lives of some of these names in the list as I recall having heard. 
"Why from a comparatively small portion of the State there should 
have come so many men of ability and who were leaders in every 
field of honorable activity in the development and progress of the 
State, is a question which might afford an interesting theme for 
the sociologist or the student of intellectual and moral develop- 
ment, but I content myself with the statement of the fact, for 
such it is. 



16 GOVERNORS WHO HAVE BEEN 



CHAPTER n. 

One of the contemporaries of General Henderson in the diplo- 
matic service in the Republic, was a man of very high order of 
culture, and admirably adapted for that character of public serv- 
ice. He was Dr. Ashbel Smith, who died within the comparatively 
recent past in Harris County. While dealing with instances in the 
lives of these two men, it may be appropriate to indulge in some 
reflection of the popular idea concerning men who were con- 
spicuous in the early days of Texas. 

It has been said, that in a great measure we are prone to magnify 
the achievements of men of the past. We reverse the physical law 
of optics, and they appear to grow greater as they recede, and 
they are greatly magnified by the mists of antiquity. However, 
to whatever extent this may be true as a general proposition, my 
experience has been that it does not apply to the men who re- 
deemed Texas from Mexican despotism and established the Re- 
public. They have fallen far short of receiving that measure of 
appreciation which is their just due. Many people who are not 
familiar with the early history of Texas, some of them Texans, 
are inclined to speak in terms of depreciation and patronage of 
the leaders among the pioneers of Texas. 

The idea seems to prevail in many quarters that those men 
loomed large only because of their environment and because they 
were contrasted with small men. No conception could be more 
erroneous. 

Many of the men who established the Republic of Texas, drafted 
its Constitution, shaped its policies and directed its destinies, 
would have been men of mark in any country and would have 
left the impress of their ability and constructive statesmanship on 
any era of history. It is an indisputable fact that from the seven 
hundred and eighty-three men who composed the Texas army at 
San Jacinto, more men went to the executive chair, to the halls of 
Legislation, to the pulpit and to the bar and bench, and to other 
positions of honorable service, than ever went from the same 
number of men in all the annals of history. 

One of that army had been Governor of a sovereign State and 
was twice President of the Republic of Texas, twice United States 
Senator from Texas and Governor of Texas; another died in the 
position of United States Senator from Texas; another was Presi- 
dent of the Republic of Texas, and his nephew and great nephew 
died while members of the Supreme Court of the United States. 
Another man who fought as a private in the battle of San Jacinto 
was twice Governor of Texas and twice Representative in Con- 
gress. The son of another San Jacinto soldier was a member of 
the Legislature of Texas and Major General in the army of the 
Confederacy. Two brothers who fought in that battle, became not 



AND OTHER PUBLIC MEN OF TEXAS 17 

only lawyers of ability themselves, but the son of one of them, 
who was two years old when the battle of San Jacinto was fought, 
was a gallant Confederate soldier, and when on the bloody field of 
Shiloh the heroic soul of Albert Sidney Johnston was borne home 
to God on the wings of victory, the arms of that knightly son of the 
San Jacinto here, enfolded him, and that young Confederate 
Colonel, Thomas McKinney Jack, came to be the most gracious, 
graceful, charming and courtly gentleman, and the most accom- 
plished nisi prius lawyer ever at the Bar of Texas. 

Dr. Ashbel Smith, as I recollect, was not a Texas soldier, I 
think he came to Texas just after the Texas Revolution had suc- 
ceeded. He was born in Connecticut but was a Southern man to 
the marrow of his bones. He was appointed Ambassador to Eng- 
land, or as he was accustomed in his sharp staccato voice and 
precise manner of speech to say — "Envoy E-x-t-r-a-o-r-d-i-n-a-r-y 
and M-i-n-i-s-t-e-r P-1-e-n-i-p-o-t-e-n-t-i-a-r-y to the Court of Her 
Majesty, the Queen of England." 

There are doubtless some who will smile at the suggestion of the 
little Republic of Texas sending an Ambassador to the government 
of one of the most powerful nations in the world, with the ex- 
pectation that he would be able to hold his own with the accom- 
plished men that he would meet there; but the man who enter- 
tains the impression that Ashbel Smith was not fitted for the high 
position, has a very erroneous conception of the facts. 

They may think that no man that the infant Republic had within 
her borders would have proved equal to the occasion, since he 
must have come from the rude and primitive environment of a 
frontier country; but I undertake to say that Ashbel Smith never 
had his superior in scholarship and culture in all Texas in his 
day and time, or since. In point of profound learning, thorough 
scholarship and familiarity with the ancient classics and with all 
the realm and range of literature, and with the conventionalities 
and amenities of social life; and in professional skill, this nation 
has never had as an Ambassador to England — one who was the 
superior of the man sent there by the struggling young Republic 
of Texas. I make this statement without reservation, barring no 
man from the comparison. 

He had "sounded all the depths and shoals" of learning, not only 
in the profession which he fitted himself for (but which he rarely 
practiced except as a matter of accommodation to his neighbors), 
but in the sphere of literature, science and philosophy. He could 
translate the oldest black letter Latin as rapidly as the average 
man can read a newspaper. 

One of the most highly educated men in Texas, who was for 
many years president of a college, told me that upon one occa- 
sion he visited Dr. Smith at his very humble little home on the 
shores of San Jacinto Bay, where the famous Goose Creek oil 



GOVERNORS WHO HAVE BEEN 



field was later developed. He told the Doctor that a lady had 
asked him for some information about the science of anatomy as 
related to sculpture. Dr. Smith said at once, "Perhaps, Professor, 
I can enlighten you upon that point," and turning to his library, he 
took out an old Latin book, printed in the very oldest style of 
type, and gave the professor a liberal translation which furnished 
him all the information the lady desired. 

He was very proud, and justly so, of his record as a soldier, of 
which I will say something later, and preferred the title of 
Colonel to that of "Doctor;" but the people had become so accus- 
tomed to giving him the title of "Doctor" that they persisted in it 
despite his preference for the military title. 

Upon one occasion a gentleman who in his day and time stood 
in the front rank of physicians and surgeons in Houston, told me 
that a party once asked him why people called Dr. Smith, "Dr.," 
and asked if it was because he was really a doctor, or if he had 
just been dubbed with that title. The gentleman to whom the 
question was put, looked gravely at the party who propounded it, 
and speaking slowly, said, "My dear sir, Ashbel Smith has for- 
gotten more about medicine than all the doctors in Houston ever 
knew." 

The Doctor-Colonel was at once such a unique and amirable 
character that it may grove interesting to give some idea of his 
appearance and manners and set forth a few incidents in which 
he was a participant. 

He was, as I recall, a man of medium height and slender, and 
had the appearance of being what is sometimes called "dried up." 
He looked much older than he really was. I am reminded of that 
fact by hearing my father (who was a very youthful looking man 
for his age) say that he frequently said to Dr. Smith, "Smith, when 
I get to be as old a man as you are, I hope I will be just as active 
as you are." The jest of the remark lay in the fact that my father 
was really a year older than Dr. Smith, but looked at least twenty 
years younger. 

Dr. Smith wore, invariably, a Prince Albert coat buttoned closely 
and what was called in those days a "three-story" silk hat. He 
had a small tuft of beard on his chin and had he been taller would 
have been a fair representative of "Uncle Sam" as he usually 
appears in current pictures. He spoke with great precision and 
accuracy, in faultless English, and in a sharp penetrating tone. 

When the war came on in 1861, though he was then fifty-flve 
years of age, he raised a regiment, which was known as the 
Second Texas Infantry, and went with it across the Mississippi 
and was wounded leading it in one of the desperate battles around 
Vicksburg. 

After the war, he represented Harris County in the Legislature 
and served as late as, perhaps, 1882. He was an actor in a very 



AND OTHER PUBLIC MEN OF TEXAS 19 

amusing incident in the House shortly after the session opened 
wliich followed first after the inauguration of Governor Roberts. 
It will be remembered that the slogan, "Pay as you go," had its 
origin when the "Old Alcalde" was Governor. While the House 
was in session one day, a young member got hold of an imitation 
spider made out of some short pieces of rubber, stuck in cork. 
The cork was fastened to a string which was tied to a pencil 
and while the old Doctor sat at his desk, the young member 
dangled the "spider" several times before his face, and the Doctor 
pushed it aside. After awhile he discovered that he was being 
made the victim of a jest, and he sprang up with all the agility of 
of a boy, and his offending fellow member fled down the aisle 
laughing. The old Doctor followed kicking at him as he went. 
When called to order by the Chair, he bowed with characteristic 
courtesy and said, "Mr. Speaker, I pay as I go." 

An even more amusing instance occurred at a later period of the 
session, or perhaps it may have been during the next session. 
There was a negro member in the House, a mulatto, who wore a 
flap over one eye. The Doctor was making a speech upon some 
important question — for he spoke on no other kind. 

The negro had seen other members rise and ask another member 
while he was speaking if he would yield to an interruption, and 
imitative as his race always is, the negro said, "Will de gentleman 
from Harris 'low me to interup' him?" The negro was at one 
end of the hall and the Doctor at the other, and he did not know 
who had made the request. His manners were always those of 
the old school, stately, courteous, and courtly, and he turned, pre- 
pared to bow low with a graceful wave of his hand and say, 
"Certainly, with pleasure," but when he had fully turned, he dis- 
covered who had interrupted him. In a moment he was rage 
incarnate, and raising his keen^ shrill, clear voice to the highest 
pitch, and pointing a long bony_finger at the negro, fairly shrieked, 

"Sit down! Sit down! You d yellow scoundrel!" It is hardly 

necessary to say that the colored member "sat down" forthwith. 

The "interrupter" fared better with the old Doctor than he did 
a few years later when he interrupted without permission, or with- 
out asking it, the proceedings in the course of the trial of some 
women of his race in a minor court in the town in which he lived. 
His interruption angered one of the attorneys, and a difficulty 
speedily arose, and in the twinkling of an eye the career of the 
aforetime legislator was brought to a tragic end. 

Quite a number of years ago, maybe twenty or more, a gentle- 
man who had been Judge of a District Court in East Texas, told 
me that in a case in which a negro girl was charged with poisoning 
her master. Dr. Smith had been summoned as an expert in chem- 
istry to testify as to the effect of certain kinds of poison. He had 



20 GOVERNORS WHO HAVE BEEN 

failed to appear at a previous term of the court and there had been 
a fine of $50.00 assessed against him. 

When he entered the door of the rude building in which the 
court was being held the next term, he removed his three-story 
hat and bowed low to the Judge and said, "May it please your 
Honor, I have been advised by the service upon me of legal process, 
that at the last term of this honorable court, there was entered a 
fine of $50.00 against me for failure to appear before this honor- 
able tribunal upon a certain date and day fixed, and I desire to 
explain to the court the reason of my non-appearance. The City 
of Houston, near which I have the honor to reside, conceived the 
very commendable purpose of establishing in that city, an insti- 
tution of learning of the highest order, and knowing my familiarity 
with philosophical and chemical science, solicited me to go to the 
City of Philadelphia and there select and purchase the equipment 
for the chemical laboratory for that institution of learning. I 
went, and reached the City of Philadelphia, and performed the 
pleasing duty assigned me and started upon my return home in 
ample time to have reached there, and would have been here 
at the day appointed; but the train upon which I was traveling 
was, by reason of accident, hurled from the track and I was 
covered with the wreckage of the train, and though neither killed 
nor wounded, was grievously shaken up." At this point the Judge 
interrupted him by saying, "Doctor, you are excused. Take the 
stand and be sworn." 

The result of the trial, or rather the reason given by the jury 
when the verdict was returned, was as amusing as was the 
Doctor's excuse for not being present at the former term. 

They propounded to the Doctor a great many hypothetical ques- 
tions and he would reply, "Upon that hypothesis, I will testify 
as follows," and when the opposing counsel took him under exami- 
nation, he would say, "Upon the hypothesis you propound I will 
testify as follows," and he proceeded to testify with that clearness 
and ability which his scientific knowledge enabled him to easily 
do. He used necessarily, as did the lawyers many times, the term 
"hypothesis." The guilt of the young negress was very doubtful 
and she was acquitted, a result which gave displeasure to many 
friends of her alleged victim, and when the foreman of the jury 
was questioned as to how he could have possibly arrived at such 
a verdict, his explanation was, "Oh, hell, man! The man didn't 
die from pisen. He died from hypothesis!" 

This incident may sound somewhat apocryhpal, but the same 
judge told me that the first case of felony he ever tried in one of 
the counties of his district, and if I am not mistaken it was the 
first case of any kind ever tried in the county, the jury retired 
to the sloping side of a hill and sat down on the grass under the 
shade of a tree, for there was no court house. The case was one 



AND OTHER PUBLIC MEN OF TEXAS 21 

of alleged cattle theft and the jury wrestled with the verdict for 
an hour or two and then marched slowly back up the hill to the 
shade of the tree under which court was being held and handed 
in to the Clerk the verdict, reading as follows: "We, the juror, 
clar the Defendant." 

The late Alexander Watkins Terrell, a charming raconteur and 
delightful companion, told me a few years before his death two 
most interesting stories which Dr. Smith had told him. Anyone 
who ever saw Dr. Smith can appreciate the humor of them better 
than can those who never enjoyed that delightful privilege. 

He pronounced Judge Terrell's name as if the last "e" was an 
"i," just as he invariably pronounced my father's name as if the 
"i" were an "e" and the "e" was an "i." He said, "Terr/11, when 
I was Envoy Extraordinary and Minister Plenipotentiary to the 
Court of Her Majesty, the Queen of England, I was upon one oc- 
casion invited to a levee at the royal palace. An invitation from 
royalty being equivalent to a command, I of course went. Shortly 
after I had arrived the Duchess of Kent, the mother of the Queen, 
invited me into a very handsome conservatory filled with rare 
flowers, and said to me : 'Dr. Smith, some of my German rela- 
tives have in view the establishment of a colony in a part of your 
State lying, I believe, west of a place called Austin. They purpose 
to call the colony or the town when it is established. New Braun- 
fels. My relatives entertain the hope that they may possibly be 
able to stay the spread of slavery westward, and I would be glad 
to know if you are familiar with that portion of the Republic 
of Texas.' I at once launched forth into a most e-1-o-q-u-e-n-t and 
rapturous description of that portion of Texas. I pictured all its 
virgin beauties, its delightful flowers, fertile soil and far-spreading 
landscapes. I painted it in such flowing colors that the dear old 
lady believed her kindred were destined to dwell in a veritable 
paradise, and she was delighted with the interview. 

"Now, Terrill, to speak truly, I had never been in that portion 
of Texas in my life, and considering I drew wholly upon my 
imagination I made quite a success of my poetic description. I 
could not afford to let her royal highness think I was not familiar 
with every part of the Republic." 

Judge Terrell, when he had finished the recital, said, "You see, 
that old woman away back there in 1844 or 1845 was planning to 
interfere with the spread of slavery in this country." 

The other story was related by Dr. Smith as follows: "Terrzll 
when the position of President of the Republic of Texas was held 
by Sam Houston the Capitol stood, as you know, upon the very 
spot where this hotel in which we are sitting now stands." They 
were in the Capitol Hotel in Houston, which stood where the 
magnificent Rice Hotel now stands. 

"One night the President said to me, 'Doctor, have you your pill 



22 GOVERNORS WHO HAVE BEEN 

bags?' I replied, 'I have.' The President said, 'Then follow 
me.' I did so. He turned, as I believe it is in yonder direction 
(pointing west), to what I think was then, as now, called Travis 
Street. It was very muddy, and of course there were no side- 
walks — but there were some logs and pieces of rough boards put 
down at intervals along which we had to walk as best we could. 
The President went before in perfect silence, and I followed." 
(Any man who can remember having seen both men as I can with 
fair distinctness, can draw in his mind a picture of the scene. 
The two men picking their way in the semi-darkness over muddy 
logs and slippery boards, the one six feet two and weighing per- 
haps 195 to 200 pounds, perfectly erect and walking with a digni- 
fied, majestic stride when conditions under foot made it possible, 
the other about five feet seven or eight, weighing probably 130 to 
140 pounds, and walking with quick, short, somewhat mincing 
steps, going on a mission, the purpose of which only the leader 
knew.) 

The Doctor continued, "When we reached the intersection of 
this street, which is, I believe, Texas Avenue and Travis Street, 
we found a kind of shack built of boards and boughs, and in the 
middle of it was a large pot swinging on a tripod or crane." 
(The Rice Annex Drug Store now covers that ground.) 
"A huge Indian stood by the pot waving over it a rod or stick, 
or wand, evidently practicing some kind of savage incantation. A 
slow mist-like rain was falling, and shelter was desirable, but as 
soon as the President saw that the Indian was conducting a cere- 
mony of some kind he stopped and uncovered and bowed his 
head. When the ceremony was over the President entered, I 
following, and the President turned to me and said, 'Doctor, there 
is your patient,' pointing to an Indian who was lying on a plank 
stretched on two blocks or chunks of wood in the corner of the 
rude apartment. I felt the pulse of the Indian and then said: 
'Mr. President, I can detect no pulsation.' The President placed 
his hand over his heart and bowed and said, 'Ah, Doctor, is that 
so?' I then felt over the heart of the Indian and said: 'Mr. Presi- 
dent, I can detect no, or, but little heart action.' Again the Presi- 
dent placed his hand over his heart and bowed and said: 
'Ah! Doctor, is it possible?' As the President was apparently 
much interested in the Indian, I repeated the examination 
and said: 'Mr. President, your friend is in articiilo mortis!' 
Again the President bowed and said: 'Ah! Doctor!' After yet 
another examination I said : 'Mr. President, I regret to announce 
that your friend is dead.' The President bowed again and said : 
'Indejed, Doctor, dead? Is John dead? Upon my soul I thought 

John was too d d a rascal to die,' whereupon, still with head 

uncovered, he strode majestically out of the shack into the mud 
and darkness without another word." The incident occurred 



AND OTHER PUBLIC MEN OF TEXAS 23 

many years before President Houston abandoned the habit of pro- 
fanity, and united witli tlie Cliurch, in tlie faitli of wliicii lie Lived 
and died. 

A few years before Dr. Smith died I was walking down the 
street near the gate of the Capitol grounds and overlook him. 
He mistook me for my uncle, the late Major T. J, Goree, whom I 
greatly resembled, and whose name he always pronounced 
"Gurree." The Doctor was then one of the regents of the Uni- 
versity, of which institution he was the enthusiastic friend. He 
said: "Good morning, Gurree, I am delighted to meet you. I 
have just had an interview with the professor of whom I spoke to 
you a few days since." I said : "Doctor, you have mistaken me 
for my uncle." "Ah, I see, of course this is Kettrill. I have known 
you from your boyhood, but as I was saying, the professor de- 
clined to analyze some very interesting mineral specimens I 
brought with me unless he was compensated for his services. 
Between you and me, speaking after the manner of men, the pro- 
fessor is a d- n fool." 

He was a most interesting, instructive, amusing character, a 
gentleman, a scientist, a scholar, a man of business, a graceful 
writer, deeply learned in the science of medicine, a brave soldier, 
and a man who trod levels so lofty that truth could not, and malice 
dared not, assail him. "Take him all in all, we shall not look 
upon his like again," 



24 GOVERNORS WHO HAVE BEEN 



CHAPTER HI. 

The successor of General Henderson in the office of Governor 
was the Honorable George T. Wood, of Polk County. He served 
as I have heard, several terms in the Congress of the Republic 
and was also a gallant soldier in the Mexican War. The home in 
which he lived was then in what is known as Polk County, but is 
now San Jacinto County. His home was approximately twenty- 
five miles east of Huntsville, and a few miles west of Ryan's 
Ferry, where Kickapoo (I think that is the name) Creek enters 
the Trinity River from the east. 

The total number of votes in that election was 14,767, an increase 
of over 5,000 in two years. Governor Wood received something 
less than a majority of the entire vote. I never saw him so far as 
I recall, though long after his death I frequently passed by the 
home in which he died. I have heard my father say that the road 
over which he came from Alabama with his family, and with his 
slaves, and with the family and slaves of my maternal grand- 
father, and quite a number of other planters, rgn in front of Gov- 
ernor Wood's home, which was located, as I have stated, just west 
of the Trinity River. He had about a year before retired from the 
office of Governor and was living on his plantation. 

In later years I heard some of my father's slaves say, that as 
the caravan of wagons and teams drew near the house, Governor 
Wood walked out of the woods near at hand with a long Kentucky 
rifle on his shoulder. He had been hunting and as it was dead of 
winter, he was suitably dressed. The darkies heard that he had 
been Governor and they expected to see what they called a "big 
man," dressed in fine clothes. My father, their master, always 
wore old-fashioned cut-away coats, with front flap trousers and 
wore a high hat and stock and standing collar, and frequently 
carried a gold-headed cane, and his negroes took him as a model 
dresser, and the garb of Governor Wood was very surprising to 
them, although it was adapted to the season. I do not suppose 
that any of them had ever seen a Governor and they were unable 
to associate the plain garb, and long rifle, with one who had been 
the "biggest man in the State." 

I saw recently in some purported historical publication, that 
Governor Wood died in Panola County in 1858. 

My impression is that the author is mistaken. Unless I am in 
error, he died in 1859 in what was then Polk County, but is now 
San Jacinto County. As I have said before, I have often been to 
the place where he lived, and, I believe, died. 

My father was a physician with a very large practice, and 
answered calls from long distances. He lived in Huntsville in 
1858 and 1859, where he practiced his profession. His plantation 
was fourteen miles east of Huntsville and about twelve miles west 



AND OTHER PUBLIC MEN OF TEXAS 25 

of Governor Wood's. He was called to see Governor Wood in his 
last illness. He responded promptly and when he entered the 
room where his patient was lying, the latter, in a strong, deep 
voice, said: "Good morning. Doctor, I am glad to see you, or 
rather I should say I am glad you have come, though I cannot see 
you. This doctor here who has been treating me has been giving 
me medicine which has rendered me unable to see you. I know 
you have come as quickly as you could, but you have come too 
late to be of any service to me. My condition is such that I am 
beyond help at your hands, yet I am greatly obliged to you for so 
promptly responding to my call." The circumstances attending 
the last illness of the old Governor were related to me by my 
father. The Governor had correctly diagnosed his own case, for 
he soon passed over to join the silent majority. He was a courage- 
ous soldier, and a rugged, sturdy patriot. 

I, of course, know nothing of the causes which brought about 
his defeat for re-election, but in all likelihood it was the result 
of the war sentiment which was still strong. The battle of San 
Jacinto had been fought only about eleven years before, and his 
successful opponent, Peter Hansborough Bell, fought gallantly as 
a private in that battle, and in the War between the United States 
and Mexico did gallant service as a Colonel of a regiment. It has 
often proved to be the case in this country that a man who has 
done courageous service as a soldier is very hard to defeat. In 
the election of 1849 Colonel Bell defeated Governor Wood by about 
1,550 votes, and the total increase of the votes over the number 
in 1847 was about 50 per cent. 

After Governor Bell had finished his second term of office as 
Governor he served two terms as a member of Congress from 
Texas. Later he moved to North Carolina and I have been told, 
or heard somewhere, that he commanded a regiment in the Con- 
federate Army, but whether that is true or not, I am unable to say. 
He died in North Carolina, in the comparatively recent past, at 
quite an advanced age. I have been told that he was in straight- 
ened circumstances in the latter years of his life, but if I am not 
mistaken the Twenty-Second Legislature came to his relief by the 
donation of a grant of land and a pension. He deserved all that 
was done for him, for he was a clean-handed, honest, public 
servant. 

I have heard my father tell of a very amusing literary mistake 
he (Governor Bell) made in the opening sentence of one of his 
messages. I do not set down the incident to even appear to dis- 
parage the learning of Governor Bell. Mistakes in literary quo- 
tations are, by no means, infrequent. Many people believe that 
the adage, "God tempers the wind to the shorn lamb," is to be 
found in the Bible; whereas, it is from the pen of Lawrence 



26 GOVERNORS WHO HAVE BEEN 

Sterne, a famous English writer of, I believe, the eighteenth 
century. 

A man once prominent in Texas politics, who belonged to a 
distinguished family and who won great distinction as a cavalry 
leader in the war between the States, was a very pronounced 
enemy of Sam Houston. In the course of a speech he declared 
he was not afraid to proclaim his views on the issues of the day 
or debate them with anyone on the opposing side, not even the 
great "Sanhedrin" himself. He used the term "Sanhedrin" in the 
sense of applying it to an individual, whereas, it is a matter of 
common knowledge that the "Sanhedrin" was a Jewish tribunal, 
composed of seventy-one deacons, priests and elders. The mis- 
take which Governor Bell made was that he got the Bible and 
Shakespeare mixed. In the opening sentence of one of his mes- 
sages he said: "I congratulate the Legislature upon the auspicious 
conditions under which it has assembled," and added, "in the 
language of Holy Writ, 'Now is the winter of our discontent made 
glorious summer,' " which quotation is not from the Bible, but is 
the opening lines of that great tragedy, "Richard III." 

I, of course, do not know whether there were any political con- 
ventions held in those days or not, but I have heard there were 
none. Every man was free to run or not, according as he saw fit, 
or considered that he had, or had not, a chance for election. The 
election of 1853 resulted in the election of Elisha M. Pease. He 
was a man of Northern birth and came to Texas in 1835. He 
served the Republic very efficiently in several positions, and was 
elected to the Legislature, both the House and Senate. He sided 
with the Democratic Party until it espoused the policy of secession. 
Unlike some other men who held the same views that he did 
regarding secession and the war, he did not leave Texas nor give 
any aid or comfort to her enemies, though he took no part in 
public affairs. When he was in the Legislature he drafted the 
admirable system of probate laws of Texas, which is a monument 
to his legal ability, and his thoroughness and efficiency. After 
the close of the war he was appointed Provisional Governor, but 
resigned because of some differences with the military commander 
of the district of which Texas was a part. He was a man of very 
high character and was justly respected by all who knew him. I 
do not recall that I ever saw him, though he died as late as 1883. 
He achieved a great reputation as a lawyer while at the bar. As 
early, perhaps, as 1838 the firm of Harris & Pease was formed in 
Brazoria County, where both men lived at that time, and their 
names appear in many volumes of the reports. Judge John W. 
Harris afterwards became Attorney General of the State. His 
name appears as the occupant of that office, in the three first 
volumes of Texas Reports. He was a man of ability and courage. 



AND OTHER PUBLIC MEN OF TEXAS 27 



At the time of his death, about twenty-five years ago, he lived 
in Galveston. 

I have heard an incident related of his life that illustrates the 
kind of a man he was in his earlier years. It is said that he was 
once challenged for a duel in the days of the Republic, and availing 
himself of the privilege which the challenged party always had, he 
chose shotguns at ten paces. The challenging party, through his 
seconds, declared that such a condition meant nothing more nor 
less than murder, and that the Code did not authorize any such 
condition. Judge Harris replied, so it is said, that "the Code did 
not provide for near-sighted men, and he was near-sighted and 
could not see over ten paces." He stood by the condition he had 
prescribed, and the duel never came off. 

Like many other lawyers in those days, he was obliged to take, 
in many cases, land in payment of fees, and was for many years 
"land poor," but as Texas increased in population and railroads 
were extended into new territory land rapidly increased in value, 
and in consequence the estate left by Judge Harris was a princely 
one. 

He married the widow of James Wilmer Dallam, whose work, 
Dallam's Decisions, is to be found in most law offices. At the 
time of his marriage it was understood that he would adopt the 
only child of his wife by her first marriage, but for many years it 
was believed he Iiad not done so, but long after his death it was 
discovered, wholly by accident, that he had kept his word, as the 
articles of adoption were found recorded in the archives of 
Matagorda (the proper) County. 

The adopted child, a daughter, married many years ago Branch 
T. Masterson, a member of the well known Masterson family 
of Brazoria County, which has probably furnished more law- 
yers and judges than any other family in Texas. B. T. Mas- 
terson had few superiors in Texas as a land lawyer. He prac- 
ticed before me, and I held him in highest regard, both as a 
man and as a lawyer. He died very recently. He was named for 
Dr. Branch T. Archer. 

As I recollect, Judge Harris died prior to the Galveston storm in 
1900. His elegant home was in the far western part of the City of 
Galveston and was swept away by that storm, and most of the 
members of the family lost their lives. The home of B. T. 
Masterson was also destroyed and Mrs, Masterson lost her life, and 
as I have understood, her body was not recovered until some ten 
days or two weeks after the storm. The Harris family was a 
charming, typical Southern family, and in the Harris home was 
illustrated all the splendid traditions of Southern breeding, cul- 
ture and hospitality. It was my pleasure to have known most of 
the family. 

The use of the name of Branch T. Archer reminds me of an 



28 GOVERNORS WHO HAVE BEEN 

amusing incident in which Sam Houston is said to have taken 
part. Dr. Archer, for whom Mr. Masterson was named, was a 
surgeon of great skill and a very courageous man, and it is said 
that he and Sam Houston became very bitterly estranged, so much 
so that Dr. Archer had threatened personal violence to General 
Houston on sight. A short time before the incident occurred 
General Houston had met the editor of a newspaper who had 
published in his editorial columns some very severe strictures on 
the old General. The old gentleman met him on the street one 
day and said: "My friends tell me, sir, that you have dared 
asperse my name in the columns of your miserable sheet. I have 
not seen it myself, for I would not defile my hands by touching it, 
but I tell you now, that if you use my name again, I'll cut your 
d d ears off and nail them to a post." 

It is said that shortlv afterwards he saw Dr. Archer coming 
down the street meeting him, and that as soon as he saw him he 
said: "Dr. Archer, I regret to be informed that you are a victim of 
that most distressing physical affliction called inflammatory 
rheumatism. During my residence among the Indians a squaw 
furnished me a sovereign recipe for that most painful malady, 
and I would be most happy to give it to you and thereby contrib- 
ute to your relief from suffering." 

By that time they had gotten opposite each other, and Dr. 
Archer raised his hat and bowed and the old General, then a com- 
paratively young man, and President of the Republic, returned the 
bow with courtly grace, and both passed on. The old General 
had the most admirable gift of adjusting himself always to the 
present situation. 



AND OTHER PUBLIC MEN OF TEXAS 29 



CHAPTER IV. 

The election of 1857 was, in some respects, the most remarkable 
ever held in Texas, in that it resulted in the defeat of Sam Hous- 
ton for the office of Governor. There was already felt the pre- 
monitory symptoms of the gathering political storm, which broke 
upon the nation a little more than three years later. Secession 
had become to be talked about, and the political tide in the North 
was setting in a, direction which indicated the election of an anti- 
slavery candidate. The indications were that secession was, by 
no means, improbable, and it was known that General Houston was 
a devout and intense Union man and bitterly opposed to seces- 
sion, and there is no doubt but that that question had much to 
do with the result. Hardin R, Runnels was the successful candi- 
date. I do not recall that I ever saw him but once in my life, and 
that was when I was a lad, hardly old enough to remember it. 
As I remember him, he was a man of medium size, hair auburn 
if not bright red. He had been Speaker of the House and lived in 
Bowie County. He was a man of high character and fair ability. 
His running-mate was Frank R. Lubbock of Harris County, while 
General Houston's running-mate for Lieutenant Governor was 
Hon. Edward Clark of Marshall, Harrison County. Governor Run- 
nels received a majority of 3,924 votes. I was not old enough to 
remember very much about the election, but I think it likely that 
General Houston was still in the Senate, and I venture the opinion 
that he did not believe the people of Texas would defeat him for 
any office, but they did. 

He bided his time, however, and in 1859 the two tickets were 
exactly the samp as they had been in 1857, and though the election 
was held two years nearer the day of secession, and the feeling 
had grown much stronger in favor of that policy, the result was a 
distinct reversal of the former vote. General Houston was at that 
time sixty-six years of age, and was suffering from the wounds 
he had received in Indian warfare, and at the battle of San 
Jacinto. The campaign he made over a vast territory in buggies, 
carriages and stage coaches, speaking in school houses and under 
bush arbors, and in almost every conceivable kind of place, was 
a most remarkable one. 

He increased his own vote over 8,000 and obtained about 5,000 
greater majority over Governor Runnels than Governor Runnels 
had obtained over him. It was a wonderful achievement under 
all the circumstances, but Sam Houston was a power on the stump 
and was in many ways a remarkable man. I do not recall that I 
ever heard him make a speech, but I remember very well having 
seen him, and I have been in his house when I was a lad. Mrs. 
Houston and my mother were educated at the same iiistitution 
and married in the same county in Alabama, though Mrs. Hous- 



30 GOVERNORS WHO HAVE BEEN 

ton's marriage preceded that of my mother's by quite a number 
of years. , 

When my father came to Texas he settled near where Governor 
Houston lived, and while they never agreed politically, their per- 
sonal friendship, and that of the two families, remained i'.nl)roken. 

The general outline of the career of Sam Houston is a matter of 
common knowledge, but even up to this time there exists, in some 
quarters, much misapprehension as to tlje character of man he 
was, and many people are disposed to disparage his ability and 
achievements. Some years ago I took the time and performed the 
labor necessary to examine closely the story of his life, and while 
the statement may provoke dissent from many, I undertake to say 
that no man in the history of this nation, since the colonists first 
landed in 1620 at Jamestown, Virginia, up to this time, ever had 
so unique and remarkable a career as did Sam Houston. 

This statement is made without reservation and no man is barred 
from the comparison. In 1806, a barefooted, fatherless boy, he 
journeyed with his widowed mother and seven brothers and 
sisters to the mountains of East Tennessee. At sixteen years of 
age he lived with the Indians and joined with them in their 
sports and in the chase. Within the period of twenty-one years he 
passed through the honorable gradations of a clerk in a country 
store, of a teacher of a country school, and lieutenant in the 
United States Army under Andrew Jackson, and was thrice 
wounded in one of the bloodiest Indian battles of modern times. 

He was a student of law, a lawyer, prosecuting attorney, adju- 
tant general, twice a member of Congress from Tennessee, and 
Governor of that State. If his career had ended there, it would 
have been a remarkable one, but his later achievements were even 
more remarkable. He resigned from the office of Governor of 
Tennessee, crossed the Mississippi River, and again took up his 
abode with the Indians in the primeval forests of Arkansas and 
lived as they lived for more than three years. He put foot upon 
the soil of Texas for the first time on December 10, 1832, and pre- 
dicted then and there, that he would be the President of a 
Republic. 

The Texas Declaration of Independence was adopted upon his 
motion on his 43rd birthday, and he was at once appointed Com- 
mander of the Armies of Texas. On the 21st day of April he led 
that army to victory at San Jacinto, and became first President 
of the young Republic, established by that battle. After a con- 
stitutional intermission of two years, he again became President. 
After his term as President had expired, he served in the Senate 
of the Republic of Texas, and when Texas became a State was 
elected to the United States Senate, and served in that august body 
twelve years with honor and distinction. He was elected Gov- 
ernor and retired from public life as the Governor of the State, 



AND OTHER PUBLIC MEN OF TEXAS 31 



which eventuated out of the Republic whicli his services were 
largely instrumental in establishing twenty-five years before. 

If there is any such record of achievements in all the annals 
of American history, I have never discovered it in my reading. 
The military and civil career of General Houston and his varied 
and valuable services, present a tempting theme, but I can do 
no more than give this cursory sketch of as brave, as honest and 
as devoted and faithful a public servant as ever held official 
station. 

When General Houston was deposed and removed from the 
office of Governor, Lieutenant Governor Clark succeeded him. 
I remember hearing a story told concerning what General, or 
Governor Houston said about the matter of the transfer of the 
office. It sounded very much as if it were true. A friend asked 
General Houston how the matter of his giving up possession and 
Governor Clark taking the executive office was carried out? He 
replied in the deliberate manner in which he always spoke: "I 
went over to the Governor's office after breakfast, expecting to 
proceed with the public business, but found little Eddie Clark 
in possession. I verily believe he camped all night at the wood 
pile so as to be on hand at an early hour in the morning." 

The old man, of course, felt irritated, and was laboring under 
a sense of what he believed was injustice, and under such cir- 
cumstances much must be pardoned. When he was aroused his 
tongue was never coated with honey or oil. He really meant no 
unkindness, but what he said was unjust to Governor Clark. The 
term "Little Eddie" was most inapt, for Governor Clark was a 
tall, portly, dignified gentleman who had the respect of all who 
knew him. 

His views on the overshadowing issues of the day, and those 
of General Houston were different, and when the office became 
vacant by the deposition of the Governor, Governor Clark became 
his constitutional successor and felt able to take such oath as 
Governor Houston was unwilling to take. The latter demeaned 
himself with great dignity and exalted patriotism in that time of 
stress and turmoil and trial. 

He always had the courage of his convictions and he would not 
have surrendered them for any office on earth. He warned the 
people that secession was most unwise, that success of their cause 
in case of war was impossible, and never ceased to plead for the 
Union, even when public passion was at highest tide. He had 
the prescience of a prophet, and the courage of a martyr. 



32 GOVERNORS WHO HAVE BEEN 



CHAPTER V. 

The election of 1861 was remarkable in one respect, namely, 
that the two candidates for Governor had both been Lieutenant- 
Governor and both had been defeated for that office. I was not 
old enough to know much about poltics in 1861, but the official 
returns show that it was the closest election ever held in Texas 
before, or, so far as I know, since. Governor Lubbock was 
elected by only 124 votes. In that most instructive and charming 
book entitled, "Sixty Years in Texas," written by him, he says 
that when he got as far as Bastrop on his way to Austin after the 
election the result was still in doubt and he stopped with friends 
in Bastrop to await definite information as to the ultimate result, 
lest he might find when he reached Austin that he had been de- 
feated. Governor Lubbock and my father were friends and I 
have seen him often and knew him as well as a young man could 
know an old one. He was a very worthy character. He was from 
Harris County and had been District Clerk of that county since 
1841. His case was the only one which I ever knew of a man 
going from the District Clerk's office to Lieutenant-Governor of 
the State, and from the Lieutenant-Governor's office to the Gov- 
ernorship. His career most forcefully illustrates that while intel- 
lectual ability and the graces of oratory, and the electioneering 
gift may be, and, of course are, most helpful aids to political 
success, yet no politician or candidate for office ever possessed 
so valuable an asset as is the reputation for incorruptible, personal 
integrity. 

Governor Lubbock was not a big man, either physically or 
intellectually, but he was an absolutely honest man, and was a 
bright, catchy, amusing speaker on the stump, but not a reasoner 
or a deep man, mentally. His competitor. Governor Clark, was a 
much more impressive looking man, because he was tall, very 
dignified, and in every way a most worthy gentleman. Governor 
Lubbock lived to be over ninety years of age, and died respected 
and honored by all who knew him. When he was in political 
life, and for several years after, he had a habit, which was not 
uncommon to many men in his day and time — that of indulging 
in various brands and styles of profanity. He swore like a trooper, 
but was always clean of speech and indulged in no vulgarity. 
He forsook that habit a number of years before he died and joined 
the Presbyterian Church. Sam Jones was accustomed to say 
that repentance meant "turning around and going the other way." 
The illustration is a very good one, and it fits the case of Governor 
Lubbock admirably, because he turned completely around and 
was a most devout and exemplary Christian to the day of his 
death. He had undergone many hardships and dangers, and 
borne great responsibilities; and when the snows of more than 



AND OTHER PUBLIC MEN OF TEXAS 33 

four-score and ten winters had whitened his locks, he passed to 
his final rest consoled and comforted by that faith which has 
been the comfort and consolation of so many of the lowliest and 
loftiest of the children of men. 

Governor Lubbock did not offer for re-election, but at the con- 
clusion of his term of office went to Virginia and offered his 
services to the Confederate Government and was assigned to duty 
on the staff of President Davis, whose devoted friend and cham- 
pion, he was to the last hour of his life. He carried the baby 
daughter of President Davis, later known as "the Daughter of the 
Confederacy," in his arms to visit her father when he was a 
prisoner in the dungeons of Fortress Monroe. When that daughter, 
who had grown to gracious, charming womanhood, came in 1895 
to attend the Confederate Reunion in Houston, Governor Lubbock 
met her, and every man and woman who saw that meeting be- 
tween the gray-haired old man and the youthful, beautiful woman 
looked upon it through the mist of tears, which could not be 
restrained. 

After the lapse of fifteen years, Governor Lubbock entered public 
life again. In 1878 he was nominated for State Treasurer at the 
same convention which nominated Honorable 0. M. Roberts for 
Governor. He held that office for six terms, or twelve years, and 
discharged the duties pertaining to it as he did every other public 
trust, with conscientious fidelity and absolute integrity. He was 
absolutely, indeed, it might be said, fanatically honest. About the 
beginning of the war, 1861-65, a fund had been raised in and 
around Houston, amounting to about $1,200.00 for some patriotic 
purpose; perhaps for the erection of a monument of some kind. 
Governor Lubbock was made treasurer of the fund. After peace 
had been declared and the people were in a mental condition to 
give attention to such matters, it occurred to somebody to in- 
quire about that particular fund. The inquiry developed that it 
had been turned over to Governor Lubbock. He was called upon 
for it. He produced it to the last penny forthwith, and it was 
said that he not only produced $1,200.00, but produced the identi- 
cal $1,200.00 put in his hands some five or six years before. 

When Governor Roberts became Governor and Governor Lub- 
bock Treasurer, the financial condition of the State was very 
bad. The Old Alcalde adopted the policy of "pay as you go," and 
Governor Lubbock was heartily in sympathy with that policy, but 
his efforts to establish it and to enforce it caused him no little 
trouble. In all counties of less than 10,000 population, the sheriff 
was also tax collector, and it became customary — there being no 
law to forbid it — for a tax collector to bring a lot of money to the 
Treasury in one pocket, get a receipt for it, and then reach into the 
other pocket and pull out a lot of warrants and get it back. The 
old Treasurer proceeded to get a register and register warrants. 



34 GOVERNORS WHO HAVE BEEN 

and if there was enough money on hand to pay the registered 
warrants and those that had not been registered he would pay both, 
but if, for instance, there was warrant No. 20 that was registered, 
he would not pay any other warrant until that one had been paid, 
unless he had money enough to pay both. 

The first collector who paid in a lot of money but failed to get 
it back with the warrants he had in the other pocket raised a loud 
complaint, which was taken up all over the State, but Governor 
Lubbock adhered to the system. I always had great reverence and 
respect for the old man, both because of his high character and 
because he and my father were friends in days gone by; and so 
when I chanced to meet him on the street one day in Austin, I said: 
"Governor, this plan, or system, of registering warrants you have 
invented and put in force is worrying a lot of people." A gentle- 
man, who was in my company, said: "I do not see how you can 
do it, Governor. There is no law for it." It was before the old 

man had joined the church, and he said: "D n it, I made a 

law of my own, and if you don't think it works, you come up 
there with a lot of warrants that ain't registered and I will be 
d d if you get your money until all earlier warrants are paid." 

I met the old gentleman in the early part of 1883, while the 
Legislature was in session in the temporary capitol. He came into 
the Senate chamber on a very cold morning with an overcoat that 
reached nearly to the ground, and was wearing a cheviot cap that 
was covered with sleet, as he had just come in from the street. 
I bade him good morning and expressed the hope that he was 
well. He replied: "I feel better, I'll be damned if I don't." I 
asked if he had been unwell. He said: "No, but they have been 
counting the money in the Treasury for the last three weeks and 
I do not know whether it is all there or not. I believed it was. 
I get the best men I can get for the money they allow me, to take 
it in and pay it out, but I couldn't tell whether it was in fact 
actually there or not, but it is there to the last damned cent and 
$6.00 over that I have made in change, and I tell you I feel better." 

As soon as the committee's report revealed that there was sev- 
eral million dollars of actual money in the Treasury, it was sug- 
gested by some legislator that the bond of the Treasurer should 
be increased. When I happened to meet the old Governor one day I 
asked him if he had heard that there was a movement to increase 
his bond to half a million dollars, and asked him what he would 
do if such an act was passed. His reply was: "I would resign 

the d d office in fifteen minutes. I am not going to crawl 

around on my belly and ask any man to go on my bond." He 
was elected Treasurer for the last time in 1888, at the same 
election Governor Ross was elected for the second time. At that 
time I was on the bench in the Twelfth District, and the Legis- 



AND OTHER PUBLIC MEN OF TEXAS 35 

lature did me the honor to invite me to administer the oaths of 
office to the Governor and Lieutenant Governor elect. 

After the ceremonies were over upstairs I went down to the 
Attorney General's office, and all the other officials constituting 
the executive department gathered there, and I administered the 
oath of office to all of them. 

It was, of course, none of my business whether the Treasurer 
had given bond or not, but because I knew the old gentleman so 
well and respected him so highly, I asked him in a jesting way, 
"Governor, have you made your bond?" With typcial earnestness 
and promptness, he answered, "Yes, sir," and thrusting his hand 
into the side pocket of his coat, said, "Here it is and it wasn't 
made in Austin either." I glanced over the bond and I knew all 
three of the sureties, whose names I could set forth if necessary. 
It was good for a million dollars, though it was for only $75,000.00, 
all the law required. 

I heard one of the most graceful and appropriate references 
made to Governor Lubbock by a toastmaster at a banquet that I 
recall ever having heard made on such an occasion. 

The banquet was that given in 1889 by the citizens of Galveston 
to celebrate the passage of the bill making an appropriation for 
deep water; which was incomparably in all its appointments the 
greatest and most sumptuous banquet I ever saw spread, and 
many men from other States so pronounced it. 

R. B. Hawley, who as a Republican represented the Galveston 
district in Congress for four years, was toastmaster. He was a 
handsome, graceful, cultured man, and introducing Governor 
Lubbock quoted from the last scene of the great drama, "Riche- 
lieu." The banquet was held just about the time the Treasurers 
of three Southern States had defaulted and absconded. Mr. 
Hawley said : "When traitors had poisoned the mind of the 
thirteenth Louis against his Prime Minister, the great Richelieu, 
and he was in the very act of dismissing him from his post of 
power, he discovered the treason, and found danger pressing on 
every side, and in that hour the King said: 'No successor to 
Richelieu. Round me thrones totter, dynasties dissolve; the soil 
he guards alone escapes the earthquake.' 

"In more than one other State, Treasurers have proved faithless 
to their trusts, but the treasury of Texas has been guarded by an 
honest servant, and while other sister states bemoan their van- 
ished treasure, Texas, thanks to one with us tonight and who we 
are proud to honor, has escaped the earthquake. I present to 
you Ex-Govcrnor Frank R. Lubbock, State Treasurer, for whom 
there is no successor needed." 

It struck me as a most felicitous introduction. 

Senator Coke, who was a guest and who had been then for 
about twelve years in the Senate, responded in a few very forceful 



36 GOVERNORS WHO HAVE BEEN 



words to the toast, "The President of the United States." He said 
in his cahn, deliberate, impressive manner of speech: "We differ 
as partisans among ourselves as to policies and politics, and 
parties, and as to such matters up as to tariff and coinage, and as 
to our preferences as between men whom we desire to be Presi- 
dent, but there is one gratifying fact concerning which among 
Americans there can be no difference of opinion, and that is that 
from the time of George Washington down to this, the day of 
Benjamin Harrison, there has never been a man in the executive 
chair of this great nation who was not an honorable, high-minded, 
clean-handed gentleman." Blessed is the nation concerning whose 
chief executives a great Senator could truthfully make such a 
statement. 

No man connected with the Government of Texas, or any other 
State, ever left behind him a record of public service more honor- 
able and worthy than did Frank R. Lubbock. 



AND OTHER PUBLIC MEN OF TEXAS 37 



CHAPTER VI. 

There were incidents in the lives of many of the leading men 
who came to Texas at an early date that are worthy to be perpetu- 
ated, and while many are more or less amusing, they are illus- 
trative of the character of the men, and some of them are re- 
membered more distinctly than is any special feature of their 
public service. I deal with the name of Governor Roberts, without 
regard to chronological order- — as he lived in Texas for over fifty 
years and belonged to several eras of Texas history. 

Perhaps no man was ever better known in Texas since the days 
of Sam Houston than was Oran Milo Roberts, and no man was 
more deeply entrenched in popular confidence and respect. He 
was a singular combination of intellect, and almost childish sim- 
plicity. He came to Texas nearly eighty years ago as a very 
young man, and was District Attorney and District Judge, and 
about sixteen years after he arrived in the State he became Judge 
of the Supreme Court. He was popular, yet he had none of the 
arts of the demagogue. He did not possess one qualification that 
many successful politicians possess — the art of public speaking. 
He did not have the gift of ease and grace as a public speaker. 
He had none of the arts of the orator. It is doubtful if he ever 
attempted a simile or metaphor in the course of a public speech 
in all his life, but he knew what he meant to say, and said it in 
clear-cut English, and his patriotism and Spartan integrity, and his 
unselfish devotion to Texas, gave weight to what he said. Every 
man who heard him knew there was behind what he said, that 
which must be behind every speech if it has any weight, or in 
anywise influences popular action, namely — a man. 

In the field of judicial writing he was at his best, but of this 
I will have something to say later. It was almost inconceivable 
that a man who could write such opinions as came from the 
pen of Judge Roberts, could be at the same time so obsolutely 
simple in speech and action as he was at times. To illustrate 
what I mean : while he was a much older man than I, I enjoyed 
hearing him talk in that peculiar manner of speech which charac- 
terized him, and he was always interesting. On one occasion I 
heard him talking about his experiences in the army. He said 
one day they were about to have a battle and his commanding 
officer ordered him to throw his regiment across the creek that 
lay between the two armies, and he said: "I threw my regiment 
across the creek," then he stopped and in perfect seriousness 
made the following explanation: "Now you understand I didn't 
take each man up myself and pitch him across the creek, but I 
said, 'Boys, get over the creek, get over the creek.' " This was 
not said in the way of a jest, but in seriousness, as if he thought 
it necessary that he should not be literally understood as having 



38 GOVERNORS WHO HAVE BEEN 

thrown eight hundred or a thousand men across the stream by 
sheer physical force. 

The amusing naturalness and simplicity in a certain sense of 
Judge Roberts can best be illustrated by two well attested inci- 
dents. In 1874 and 1875, when he was on the Supreme Bench, 
the Court sat at Galveston, and the term synchronized with that 
festival and frolic known as the arrival of Momus, or Mardi Gras. 
It was a season of revelry and riotous fun. By common consent 
all city ordinances against minor offenses were suspended and 
the city, so to speak, was wide open. 

For one day at least all social barriers were let down and the 
creme de la creme of society and the underworld mixed. Even the 
ordinances which regulated the movements of ladies of leisure were 
for the time being, abrogated, and they had full and unrestrained 
access to the streets. The old Judge, though gray-haired and 
venerable and dignified, enjoyed the fun and frolic as much as 
the youngest person on the streets. He never forgot his dignity, 
but he was a thorough Democrat and every crowd was his crowd. 
Wine, and even stronger stimulants, flowed fresh and he was by 
no means Puritanical, but indulged on proper occasions, "When 
in Rome do as the Romans do" was the motto he believed in. 

The wine and the excitement, and the music, and the hustling 
and jolly crowd thrilled the venerable Chief Justice, and he was 
in such a state as not to be able to clearly distinguish between the 
most circumspect and refined lady of the inner circles, and her 
less scrupulous sister. Two of the latter class gaudily arrayed and 
full of the spirit of the occasion, and perhaps of other inspiration 
more substantial, were attracted by the erect carriage and the 
gray hair and dignified appearance of the Chief Justice, so 
one got on each side, and thrust her hand into the curve of his 
elbow, which he, with characteristic gallantry, offered, and down 
the street the trio marched, the old gentleman entirely oblivious or 
unconscious of the character of his escorts. Some member of the 
bar met the trio, and took in the situation at a glance, and stopped 
the old Judge and said he desired to speak with him. He took 
him aside and explained who his escorts were and led him on. 
Not until this had been done had the old man suspicioned that 
he was not escorting or being escorted by some of the very creme 
de la creme of society. 

The second incident in which he played a characteristic and 
amusing part was related to me some years ago, and again very 
recently, by a friend of mine who served in Colonel Roberts' 
regiment during the war between the States. The regiment was 
camped somewhere either in Louisiana or Arkansas in the forests, 
and it was Christmas night and the winter was very cold. The 
Colonel was asleep in his tent, when he heard the voice of a negro 
man calling, "Cunnell, Cunnell, Captain Polk told me to come here 



AND OTHER PUBLIC MEN OF TEXAS 39 

and say he wish you would come down to his tent." The Colonel 
replied: "Get away from here, and get away quick, and go back 
and tell Captain Polk I will do nothing of the kind, and ask him 
if he thinks I am going to get up this freezing night to go to his 
tent." The negro, of course, obediently left, but the Colonel had 
hardly had time to get back to sleep when he was again awakened 
by the negro's voice: "Cunnell, Cunnell." The Colonel was 
wrathy and ripped out : "How dare you come back here and 
wake me up again. Didn't I tell you to go away. Go now and 
tell Captain Poik if he sends you here again I will put him under 
arrest." The negro returned to the Captain's tent, but was soon 
back again calling for the Colonel. The third time the Colonel 
woke in a rage and said : "Say, leave here and leave quick. What 
does Captain Po!k mean by such conduct and disobedience of my 
order? It is insulting." The negro said: "No, Marse Cunnell, he 
don't mean to 'suit you 'tall. He told me to tell you he had a jug 
of pow'ful good liquor, and about five dozen hen aigs, and he 
mout be able to mix up sumpin' you'd like." The Colonel softened 
immediately and began to roll from his blankets, saying as he did 
so: "Well, well, the idea of a Captain disturbing his Colonel at 
this time on a freezing night and asking him to get up and go to 
his tent, but I will go, since he is so polite," and he went. There 
were others who would have doubtless responded to the same 
summons. 

A friend of mine, an ex-judge, who once lived in Waco, told 
me of a very amusing incident which occurred while the old gen- 
tleman was making a speech during one of his canvasses for 
Governor. The committee at Waco had placed a generous-sized 
pitcher of water on the speaker's stand and, without the old gen- 
tleman's knowledge, they had "spiked" it pretty freely with 
something which was stronger than water. The day was warm, 
and the old gentleman spoke for something like an hour, or an 
hour and a half, or maybe longer, and he drank freely and towards 
the close of the speech he felt considerably exhilarated, and un- 
dertook in illustrating some point to use the incident related in 
the Scripture about the woman who took the leaven and hid it in 
three measures of meal until the whole was leavened. By that 
time the old gentleman's mind had become a little confused, and 
his ideas didn't flow very freely^ and he was unable to express the 
simile in the Scriptural phrase. After one or two attempts he 
wound up that pot-tion of his speech by saying: "Well, you know, 
you know, she made all the dough in the tray rise at one time." 

He was nominated for Governor without the slightest effort 
upon his part, and without preliminary canvass. The Convention 
of 1878 met in Austin and was in session ten days and because 
neither Governor Hubbard nor Governor Throckmorton could get 



40 GOVERNORS WHO HAVE BEEN 

a two-thirds majority, the convention compromised on Governor 
Roberts, who was then on the Supreme Bench. 

The financial condition of the State was not good at that time, 
and while nobody doubted the integrity of Governor Roberts, there 
were doubts whether he was adequate for dealing with the finan- 
cial situation. He had in the management of his own affairs never 
manifested any financial ability, because he had never given any 
thought to making money. He lived in a wholly different atmos- 
phere, yet he speedily put Texas on a cash basis. He showed not 
only a thorough conception of what was necessary to re-establish 
the finances of the State on a permanent business basis, but car- 
ried his plan into execution with the highest measure of success. 
He was called upon to deal with the big questions of finance 
and grasped it as he would have done had it been a big question 
of law, and did not waste time or go into details of immaterial 
moment. There had been many men in the history who were wise 
in big matters, yet were children otherwise. 

I believe it was Sir Isaac Newton, the wisest of all scientists, 
who, when asked why he cut two holes in the door of his bed 
room, replied that one was for the big cat to come in, and the 
other for the little cat. 

I have very little familiarity with history, but I have heard or 
read that the younger Pitt, Prime Minister of England, by sheer 
force of his great mind and sound judgment in dealing with the 
great problem of national finances when England was in a state of 
great finacial depression, and threatened with irreparable dis- 
aster, placed her on a sound and prosperous footing, yet as to 
his own finances, died hopelessly bankrupt. 

I have said that in the field of judicial writing he was at his 
best. If I may with propriety express an opinion, I will say that 
I have never thought that his opinions, taking the common run of 
cases, were as practical, or instructive, or helpful to the bar and 
bench as were those of some of his predecessors and successors. 
They are learned and show thorough familiarity with the fun- 
damental principles of law, but do not appear to me to make as 
clear the ideas intended to be conveyed as is necessary to make 
them useful as guides and precedents. 

He did write some opinions, however, that none but a man pro- 
foundly learned in the law and possessed of the ability to write 
the purest English could have written. No man who ever heard 
him in a public speech would believe, if he did not know who the 
author was, that Governor Roberts wrote the opinion on 
rehearing in Duncan vs. Magette, 25 Texas. Beginning 
near the bottom of the 252nd page and concluding at the bottom of 
the next page will be found a dissertation upon the distinctions be- 
tween law as practically and necessarily administered, and ab- 
stract justice, which is so philosophical and so rich in literary 



AND OTHER PUBLIC MEN OF TEXAS 41 

grace as to have been justly termed a legal classic. The reports 
of many courts will have to be searched to find anything superior 
in a literary point of view. 

I recall distinctly that shortly after the opinion of Judge Rob- 
erts in Keuchler vs. Wright, beginning on the 467th page of the 
40th Texas and covering 47 pages, appeared, it was pronounced 
by one of the leading law journals of the United States one of 
the ablest opinions ever delivered from any bench in all the 
judicial history of the government. In the preceding case of 
Bledsoe vs. I. & G. N. Ry. Co. Judge Roberts and Judge Gray and 
Special Justice J. W. Ferris, the latter writing the very able 
opinion, had decided the case, Justices Reeves and Devine dis- 
senting. Judge Moore, being disqualified, did not sit in that 
case. Justices Reeves and Devine in Keuchler vs. Wright, still 
adhered to their position in the Bledsoe case and mandamus 
could issue, but agreed with the. disposition of the case on another 
ground. 

The opinions of both the majority and minority in the Bledsoe 
case are well worthy of reading at the hands of any lawyer. Both 
Judges Moore and Roberts wrote opinions in the Keuchler case. 

Governor Roberts was especially capable in the selection of 
Judges for the higher courts. He knew a lawyer when he saw, 
or heard one. 

When Hon. Malcolm D. Ector died in 1879 when he was Pre- 
siding Judge of the Court of Criminal Appeals, Governor Roberts 
at once appointed Hon. George Clark of Waco. His superior as a 
lawyer has never been upon any bench in Texas. The few opin- 
ions he wrote while on the Court of Criminal Appeals were monu- 
ments of unanswerable logic and judicial and legal learning. I have 
no doubt that there were many of the bar who can remember 
when in 1881 Governor Roberts appointed the Hon. John W. Stay- 
ton as Associate Justice of the Supreme Court. The expression 
was heard on every side, "who is John W. Stayton?" and nobody 
was more surprised than Judge Stayton himself. One of the 
distinguished members of one of the higher courts of Texas told 
me very recently that he chanced to be in Judge Stayton's office 
when he received the telegram tendering him the appointment. 
He read it over a time or two before he appeared to grasp exactly 
what it meant, and before accepting it got in his buggy and drove 
down to his house to consult his wife, and she advised him to 
accept, which he did. The bar of Texas soon learned who John 
W. Stayton was, and during his service of fourteen years as Asso- 
cite Justice and Chief Justice of the Supreme Court, the man 
who Governor Roberts had taken from a small Southwest Texas 
town, demonstrated that he would have done honor to any court 
in Christendom. 

Since the above was written a judge of one of the appellate 



42 GOVERNORS WHO HAVE BEEN 



courts of Texas told me a very amusing incident in Governor 
Roberts' military career. On one occasion "Colonel" Roberts was 
advised that his regiment was to be reviewed by General Ben 
McCulloch. V/hat the old man did not know about military tac- 
tics and etiquette would have made a large volume, so he re- 
ferred to Hardee's tactics, and calling his Adjutant, said: "Adju- 
tant, we are going to have a review, and we must have some 
music — music." All who know him recall how accustomed he 
was to repeating words. 

The Adjutant said : "Colonel, we h ;ve no musicians or music." 
"Then get some, we are bound to have it. Hardee says it is neces- 
sary and that it must be placed on the right of the line. Get it — 
get it." The Adjutant started out, and chanced to meet an in- 
habitant of the country who was riding a gray mule, and inquired 
if he knew anybody who could play on any instrument, a trumpet, 
or trombone, or bugle. The countryman said he had a bugle at 
home and could play. He was directed to get it and take a posi- 
tion on the right end of the line. He did so. There was some 
delay in opening the review, and the mule went to sleep. When 
the caivacade of reviewing officers swept down the line and 
got near the bugler, he let out a blast that could be heard a mile, 
and it woke up the muie, and he pitched his rider rigiit in front 
of the general and his staff, and broke up the parade and review. 

I lived in Galveston when the court held session in that city 
and occasionally the old Judge broke bread with me at my very 
humble board. 

One morning I overtook him taking his morning stroll. We 
passed by a spot he recognized and he said, "A preacher used to 
live here — I forget his name." I suggested a name, and he said 
"Yes, that is it, he was a preacher and a bachelor and he had two 
deers — a buck and a doe. Yes, he was a bachelor. The buck was 
making a lot of noise — you understand." 

Then he dropped that branch of his story and launched out 
into a physiological and sexological discussion on the habits of 
animals under certain circumstances, which was as amusing as 
it was instructive. It looked as if he would explain all that was 
capable of explanation, but I called him back to his main story. 

"Oh, yes," he said, "I like to forgot the preacher and the buck. 
The preacher didn't have any sense about a buck deer. He didn't 
know a buck was like a man, he didn't want to be interfered with. 
The preacher tried to stop Iiim and the buck jumped on him and 
cut him with his hoofs, till the preacher had to go to bed and stay 
two weeks. No, sii", you mustn't fool with a buck under those 
circumstances. If the preacher had had any sense, he wouldn't 
have fooled with the buck." 

Whatever he knew, he knew well, but his way of telling it was 
intensely amusing; but he was, withal, a patriotic, honest man, 



AND OTHER PUBLIC MEN OF TEXAS 43 

who discharged every trust committed to his keeping with unfail- 
ing fidelity, and the highest degree of efficiency. 

The leading opponent of Governor Roberts in both the election 
of 1878 and that of 1880 was Hon. \V. H. Hamman of Robertson 
County, whom I had the pleasure of knowing. 

In that day and time the Greenback Party was very strong in 
many parts of the United States, and General Hamman believed 
in its principles, as did many other able and patriotic men, and 
he espoused that cause with ardor and ability. 

His fate was, of course, that of every man who dares to venture 
out into new fields of political thought and action, in that he 
was ridiculed and his sincerity was called in question, but he 
could possibly have had no unworthy motive for his action, and 
he had the courage of his convictions. 

He was a man of impressive appearance, an able lawyer, a 
gentleman by birth and breeding, and a patriotic citizen. Being 
myself a "collar" Democrat, I, of course, voted the straight ticket, 
but inwardly I had a very considerable amount of sympathy with 
his views. I had not then, and have not since, studied much 
about the problems of national finance, as my own individual 
financial problem.s afforded me at once mental exercise and dis- 
tress, but since about ninety per cent of the business of the nation 
is done on credit, and there is nothing behind millions and bil- 
lions of national bonds except the good faith of the government, 
and the peple are in the last analysis the government, I was not, 
and am not, able to understand why money might not have been 
issued directly as well as in the form of bonds, which the people 
must pay at last. 

However, those who are wise in the sphere of finance — and 
comparatively their number is few, said it could not be done, 
and the Greenback party was "crucified" on a "cross of gold." 
General Hamman defended his convictions with ability, and made 
a bold and courageous fight upon the principles which he be- 
lieved to be sound. 

The sons of General Hamman have so demeaned themselves as 
to win the deserved respect and confidence of their fellow men, 
and reflect credit on their worthy sire, and their noble mother. 

His youngest daughter is the lovely wife of that able lawyer and 
most efficient Congressman, Joe H. Eagle, who has represented 
the Houston district in Congress for the past eight years, but who 
declined to offer for re-election in 1920. 

No man can be justly measured or judged amid the heat and 
passion of political conflict. His virtues are ignored, and his 
faults magnified, but when the fury of the political storm has 
passed, and men think normaly and calmly, they are just in their 
judgments. 



44 GOVERNORS WHO HAVE BEEN 

Gen. Hamman followed his convictions of duty, and now when 
the political organization to which he belonged is but a dim and 
shadowy memory and he has passed away, all men are willing to 
accord him that measure of praise, as an able, honest, worthy 
man that is justly his due. 



AND OTHER PUBLIC MEN OF TEXAS 45 



CHAPTER VH. 

The election of 18G3 came on in the midst of the War between 
the states and the public mind was absorbed by that fratricidal 
conflict, and no kind of election could arouse any very great 
public interest. There were 57,343 votes cast in 1861, but only 
31,036 cast in 1863. The opposing candidates were Pendleton 
Murrah of Haris County and T. J. Chambers of either Liberty or 
Chambers County. I forget in which county he lived. General 
Chambers was a man of high character and of more than ordinary 
ability, and four times was unsuccesfully a candidate for gov- 
ernor, 

Pendleton Murrah, who was elected governor, was a gentleman 
of culture and ability, an able lawyer, and was a man of modest, 
gentle demeanor, and of rather frail physique. If I am not mis- 
taken, he was tuberculous and died very shortly after he left the 
office of governor, which he. did before his term expired owing 
to the collapse of the Confederacy. He left the State to avoid the 
fate which befell Governor Letcher of Virginia, Governor Moore 
of Alabama, and other Southern Governors, who were incarcer- 
ated in Fortress Monroe. 

There was related to me at one time a very amusing incident 
connected with his journey to Mexico. He went in company with 
General J. Bankhead McGruder, who had won distinction in 
Virginia early in the war, but had been transferred to the com- 
mand of the Department of Texas. 

His headquarters were in Houston. He was a West Point 
graduate and a soldier through and through. He was educated, 
cultivated, gallant and fond of society and was sometimes called 
"Prince John." 

WTiile he had many friends, he was not enamoured of Texas 
or its people, and there was a considerable measure of reciproc- 
ity of dislike between him and them. 

While the party was in camp one night out somewhere where 
San Angelo now stands, two horsemen rode up to the camp, who 
had evidently ridden a long distance at a rapid speed. 

One of the horsemen asked if Governor Murrah was there. The 
Governor arose, and in his modest, courteous way said, "I am 
Governor Murrah." The party who made the inquiry said, "Gov- 
ernor, I have a brother in the penitentiary, and I have a numer- 
ously endorsed petition for his pardon, and I wish you would 
grant it if you can. I came by Austin to see you, but you had 
left. Your private secretary kindly filled out a pardon and put 
the seal on it, and I have it here." The Governor said, "My dear 
sir, I am touched by your fraternal devotion, but I am no longer 
Governor, at least I have abandoned the office and I am no longer 
performing my official functions. I do not see how I can help 



46 GOVERNORS WHO HAVE BEEN 

you." The rest of the party became at once interested and some- 
one, speaking for the rest, said that such devotion on the part of 
a brother deserved to be rewarded, and urged the Governor to 
grant the pardon. The Governor said, "I will sign and date it, my 
friend, but I am afraid that before you can get to Huntsville, 
some six hundred miles or more, the Federal Government will be 
in charge, and if that is so a pardon signed by me will not be 
recognized." The anxious brother said, "I will take that chance. 
It is at least worth the effort." General McGruder produced a 
pen and ink and the Governor made ready by the light of a 
campfire, with a saddle or a camp stool for a writing desk, to 
sign and date the pardon. Just at that moment General McGruder, 
who had come up, spoke out in a precise, distinct tone, "Governor, 
before you affix your signature, will you allow me to suggest the 
insertion of an amendment to the pardon after it is prepared?" 
Governor Murrah with characteristic courtesy replied, "Certainly, 
General, I will be glad to receive any suggestion you have to 
make. What is the character of the amendment that you sug- 
gest?" General McGruder replied, "It is that you include in the 
pardon all the prisoners in the penitentiary of Texas. Turn them 
all out at once, and thereby improve the morals and society of 
the d d state." 



AND OTHER PUBLIC MEN OF TEXAS 47 



CHAPTER Vni. 

Between the time of the collapse of the Confederacy, and 1866, 
when the people elected a Governor, the duties of Governor were 
performed by persons appointed either by the President or by 
military commanders, and their tenure of office was very uncer- 
tain. 

President Johnson, I think it was, in 1865, appointed Andrew 
J. Hamilton to the position of Provisional Governor. Considering 
the prevailing conditions the appointment was about as good a one 
as could have been made. Governor Hamilton was a southern 
man by birth, and had lived in Texas many years before the 
war, and served in both branches of the legislature, and in 1859 
was elected to Congress as an independent candidate, defeating 
General T. N. Waul, who was, as I have heard, the Democratic 
nominee. 

The Congressmen of this day and time, who complain that it 
is a hardship to have to canvass their comparatively small dis- 
tricts, would do well to recall what a race for Congress meant in 
1859. 

Governor Hamilton lived in Austin and General Waul in Gon- 
zales, and I once heard General Waul say that one of their joint 
debates took place in Weatherford, Parker County. How much 
father north or west they had to go I do not know. They were 
both men of the first order of ability, strong speakers, and able 
lawyers. 

I do not recall ever having seen Governor Hamilton but once, 
upon which occasion he made a brief but fierce assault on the 
administration of Edmund J. Davis, by whom he was defeated 
by a very narrow margin for Governor in 1869. He made no refer- 
ence to that fact, however, but felt outraged as did all decent 
citizens, over the rank abuses and violations of the rights of 
citizens, which were so disgraceful a feature of the Davis regime, 
for which, however, I believe the subordinate officials, rather 
than Governor Davis, were directly responsible. 

I lived in Galveston at one time ana practiced law there for 
six years, and knew General Waul, who was an elegant gentleman 
of the "old school." He was an able lawyer, and a man of 
courtly manners, and a gallant soldier in the war of 1861-1865. 
I heard him relate a very amusing incident connected with the 
campaign in which he and Governor Hamilton were opposing 
candidates. 

As was customary, the candidates alternated in opening the 
debate. The day they spoke at Weatherford was General Waul's 
day to speak fust. Governor Hamilton, like most candidates, had 
a bundle, or c(»llection of jokes and anecdotes, with which he 
illustrated his most striking points, and amused his audiences. 



48 GOVERNORS WHO HAVE BEEN 

General Waul had learned every one of his opponent's anec- 
dotes so that he could relate them even better than could his oppo- 
nent, and in the course of his opening speech told every one of 
them. He thereby took from Governor Hamilton much of his 
effective oratorical ammunition. When the debate was over 
Governor Hamilton, who had a deep, sonorous voice and spoke 
with dignity and deliberation, said, "Waul, you played me a mean 
trick. You stole all mv anecdotes. I'll swear I had as soon steal 
a man's children as his anecdotes." Their personal friendship 
was never broken by the strenuous struggle and fierce debates. 

The conception of duty on the part of the two men when seces- 
sion became a fact and war followed, was radically different; 
yet, I do not believe any man doubted the fidelity to honest con- 
viction on the part of either. 

General Hamilton left Texas and went to Washington and 
offered his services to the Federal Government, and received 
appointment as Brigadier General. 

General Waul raised a command for the Confederate Army, 
known as Waul's Legion, and though he must have been past 
middle age, he led it gallantly into battle, and, if I am not mis- 
taken, was wounded in the very fore-front of the fighting. 

When by reason of advanced age he retired from the practice 
of the law in Galveston, he went to his farm, situated, I believe, 
in Hunt County, and died there at between ninety and ninety- 
five years of age. 

It has rarely been the case that two men, both of whom were intel- 
lectually so well equipped for high office, were opposing candi- 
dates for Congress in Texas, or anywhere else. 

General Hamilton was appointed by the military authorities a 
judge of the Supreme Court, after Chief Justice Moore, and Jus- 
tices Coke, Willie, Donley and Smith had been removed as 
"impediments to reconstruction" which being properly inter- 
preted is to say, because they were clean, honest, decent men, 
and able judges. 

The appointment was made by one General Griffin, who at that 
time was military commander of the Department of Texas, and 
who was the same satrap who refused to permit the people of 
Galveston to do honor to the memory of Albert Sidney Johnston 
when his remains were enroute to Austin for final interment. 

He issued but few other orders, as the yellow fever epidemic 
broke out in Galveston and he was among the first of its victims. 
If any tears were shed upon his bier, no record of the fact was 
preserved. 

It is very surprising that so capable a man as was General 
Hamilton should have been appointed. While he was in the habit 
of indulging to excess in strong drink, I never heard his integrity 



AND OTHER PUBLIC MEN OF TEXAS 49 

called in question, and the high order of his ability was recog- 
nized by all men. 

All those who served with him on that "reconstruction" court 
have gone to join him "on the other side" and respect for the 
ancient and charitable adage, "Dc moviuis nil nisi bomun," de- 
mands that no unkindly criticism be indulged in, but if any reader 
of this will take the time to examine the fly-leaf of the 30th Volume 
of Texas Reports he will see that General Hamilton was the only 
really "big" lawyer on the Supreme Bench of Texas at that time. 

The opinion by him in that volume in the case of Lutlicr vs. 
Hunter, not only demonstrates that he was a lawyer of ability, but 
that had his conception of the questions involved been adopted, 
and the Southern States had been dealt with in harmony with his 
views, reconstruction would not have been marked by so much 
of the oppression and iniquity which characterized it. None of 
the colleagues of Judge Hamilton on the Supreme Bench could 
have any more discussed logically or intelligently the questions 
with which he dealt in Luter vs. Hunter than they could have 
translated the hieroglyphic inscription on the Rosetta stone dug 
out of the sand of the Egyptian desert. 

Texas elected a Governor and a full complement of Slate offi- 
cers in 1866, but when Thad Stevens and Ben Wade and other 
fanatics of that ilk succeeded in getting the "Reconstruction Act" 
enacted and put in operation, all the State officials, including the 
Supreme Judges and District Judges, were removed from office, 
though Texas never had before, and has never since, had a corps 
of more capable officials. 

The Governor elected in 1886 was James W. Throckmorton of 
Collin County. Who was elected Lieutenant Governor, I am not 
sure, but think it was Hon. G. W. Jones of Bastrop. Governor 
Throckmorton was a southern ijian by birth, and though he was 
opposed to secession, his people elected him to the secession con- 
vention. When he, as one of the seven who voted against secession, 
cast his vote, the people in the gallery hissed. It is said that when 
he heard that most offensive indication of disapproval, he turned 
to the galleries and said, "When the rabble hiss, well may patriots 
tremble." Unlike Andrew J. Hamilton and Edward J. Davis, he 
did not forsake his State or turn against her, but cast his fortunes 
with her, and was a faithful, gallant soldier in the Army of the 
Confederacy. "Texas, right or wrong," was his patriotic motto, 
and he lived up to it like the true man that he was. 

Even Sam Houston, whose devotion to the Union was so intense 
that he surrendered the Governorship rather than even appear 
to recognize the right of the State to secede, must have felt to some 
extent, as did Governor Throckmorton, at least so far as related to 
the duty of his son, as I conclude from an incident related to me 
a few years ago by a cultured, intelligent lady, a native of Houston, 



50 GOVERNORS WHO HAVE BEEN 

who died recently. She was a visitor at the Mansion as a young 
lady. One day the Governor came home to "lunch," or at night, 
and Mrs. Houston was in great distress. 

She said: "Oh, General, Sam (her eldest son) is going to join 
the Confederate Army." The old man turned to her with that 
stately deference and respect with which he always treated her, 
noble woman that she was, and in tremulous tones, said: "Mar- 
garet, my dear — what else can he do? It is his country, and he 
must stand by her, right or wrong." 

His first born went to battle and bore himself in a way to prove 
that he was worthy of his ancestry. He was wounded and taken 
prisoner in the first battle in which he took part. It was said at 
the time, with what measure of truth I do not know, that as soon 
as the Federal prison officials discovered that he was Sam Hous- 
ton, Jr., they released him. 

I recall that when I was a lad, elections were usually held in 
August, and I think Governor Throckmorton was inaugurated 
shortly after the election, but was removed about September, 1867. 

He and my father had served in the House together, and he ap- 
pointed my father one of the administrators (now called regents) 
of the University. My father was Chairman of the Legislative 
Committee on Education in 1857-8 and was an ardent advocate 
of the University. In recognition of that fact I have in the recent 
past presented to the Medical Department at Galveston a portrait 
of him handsomely framed. 

So far as I recall. Governor Throckmorton did not offer for 
public office again until 1872, when the State Democratic Con- 
vention met at Corsicana. There were two candidates for Con- 
gressman-at-Large to be nominated, and the contest, while free 
from bitterness or personalities, was very vigorous. There were 
a number of candidates, but the leading ones were Asa H. "Willie, 
Roger Q. Mills, and J. W. Throckmorton. Judge Willie, who was 
on the Supreme Court in 1866, was nominated first. The vote be- 
tween Colonel Mills and Governor Throckmorton was evidently 
very close, as the roll call before the footings were made revealed. 

1 recollect that the convention adjourned, either for dinner, or 
perhaps for the night — I believe it was until morning — to give the 
clerks time to verify the roll call and the count. There were many 
divided delegations and in consequence many fractional votes. 
The convention had every confidence in the integrity of the 
clerical officials, but the result was anxiously awaited. 

When it was announced. Colonel Mills had secured a two-thirds 
vote by the unprecedentally narrow margin of three-fourths of a 
vote, so a political career which gave Colonel Mills national reputa- 
tion, and revealed him as one of the ablest leaders of the Demo- 
cratic party of his day and time, began by a victory won by less 
Ihan one vote. 



AND OTHER PUBLIC MEN OF TEXAS 51 

I think it was only two years later that Governor Throckmorton 
was elected from the district in which he lived and was re-elected. 
He was justly intrenched in the confidence of the people, for he 
was honest, brave, able and patriotic. 

I do not recall ever hearing him make but one speech. He was 
not a fervid, flamboyant stump speaker who attempted flights of 
fancy or sought to embellish what he had to say with similes, 
metaphors, or rhetoric, but his eloquence was born of clearness 
and earnestness, and he influenced his hearers because they knew 
they were not listening to a political demagogue, but to a man 
whose convictions were unpurchasable, and whose courage or 
integrity no man questioned. In 1866 he was opposed for Gov- 
ernor by ex-Governor Pease, whom he defeated by a vote of four 
to one. The result was foregone. No man who had not stood by 
the South from 1861 to 1865 could any more have been elected 
Governor of Texas then than a sinner could enter heaven without 
pardon. 

In 1869 Texas had a Constitutional Convention and a guberna- 
torial election, and on March 30, 1870, she was declared to be back 
as a State with all her pristine power, in a union from which 
oceans of blood and millions of treasure had been expended to 
prove that she could not withdraw. Edmund J. Davis and An- 
drew J. Hamilton were opposing candidates. 

Both men were of Southern birth, and were not only Union 
men, as contradistinguished from secessionists, but carried their 
opposition to the action of the majority of their fellow citizens 
so far, as to not only leave the State, but to seek and accept posi- 
tions in the Federal Army of invasion. 

In that regard, there was as between the two, so far as the 
overwhelming majority of the people of Texas were concerned, 
no choice. Both were equally "anathema," but Governor Hamil- 
ton was much the abler man of the two. and much the better 
lawyer. Then he had been, so far as I now recall, though I was 
but a youth at the time, very conciliatory and conservative as pro- 
visional governor, and the tenor of his decisions while he was 
on the Supreme Bench was such as to strongly commend him to 
the majority of the Democrats, which alignment men of all politi- 
cal faith, except Republicans, had been forced to accept as a 
means of common defense. 

Judge Davis had been a district judge in the Corpus Christi 
section prior to the Civil War, but was a very intense partisan 
Republican and affiliated closely with the negro element of his 
party. He was very bitterly prejudiced against secession and 
secessionists, and secession and Democracy were, in his view, 
synonymous and convertible terms, and in his lexicography both 
"were the equivalent of the sum total of all iniquity. 

The election machinery was in the hands of the military, and 



52 GOVERNORS WHO HAVE BEEN 

the election was very close. The official returns gave Mr. Davis 
only 909 majority out of about 70,000 votes. The belief was widely 
prevalent that he was counted in, but however the facts may 
really have been, he got the certificate and the office, a fact 
which was to Texas "the direful spring of woes unnumbered." 

Thei-e came in with him, I believe, the 12th Legislature, which, 
for extravagance. Inefficiency, and corruption, as to the ma- 
jority was equal to the worst "reconstruction" legislature. From 
districts here and there widely scattered quite a number of excel- 
lent Democrats were elected, but they were able to only a slight 
extent to prevent the iniquitous legislation proposed by the 
majority. 

Governor Davis made appointments to high places of men who 
were utterly unfit. In a few instances decent, capable men ac- 
cepted appointments at his hands, but the majority of his ap- 
pointees, at least a large number, were aliens and strangers. 

I remember that it was said at the time that he claimed that he 
was compelled to appoint men he did not want to appoint, be- 
cause many Democrats to whom he tendered positions declined to 
accept them. It can truly be said to his credit, that he was per- 
sonally an honest man. I never heard it charged that he ever 
profited during his administration to the extent of a single dis- 
honest dollar. He was a man of distinguished appearance, tall, 
erect, and dignified, and was said to have been a man of the 
highest type of personal courage. 

I have heard that when he left the State with the view of reach- 
ing the Federal lines, he and a companion named, I believe, Mont- 
gomery, were caught out somewhere towards the Rio Grande, and 
that the pursuing crowd hung Montgomery and seriously debated 
whether they should not do the same with Judge Davis. While 
they were deliberating, it is said he took out some tobacco and 
a piece of shuck and coolly rooled a cigarette and as coolly pro- 
ceeded to smoke it. It may be that this calmness and courage, in 
the face of what appeared to be imminent death, so challenged 
the admiration of his captors that they released him. At all 
events, he did join the Federal Army. 

His administration was the most oppressive, tyrannicalj and 
iniquitous ever visited upon a free people. A law was enacted 
creating a State police force, at the head of which was one James 
Davidson, a carpet bagger, a pigmy in physical stature, but in 
moral (or rather immoral) depravity, a giant. His police force 
roamed over Texas, arresting without warrant, robbing, plunder- 
ing and murdering. They invaded the home of a worthy citizen 
of Limestone County and robbed him of $3000. They shot down in 
cold blood two of the best citizens of Tyler, Smith County. 

I saw Adjutant General and Chief of Police (which was his offi- 
cial title) Davidson ride into the town of Huntsville about the 



AND OTHER PUBLIC MEN OF TEXAS 53 



middle of January, 1871, at the head of a squad of armed state 
police and post a proclamation declaring martial law, and levying 
a tax of twenty-five cents on the one hundred dollars' worth of 
property to pay the expenses of the unlawful occupation of the 
town. I know this to be true, because I paid part of the tax for 
my widowed mother. 

He then proceeded to organize a military commission composed 
of State Militia officers and tried four young men who had been 
schoolmates of mine, and fined three of them one hundred dollars, 
and sentenced one to the penitentiary for five years, and actually 
put him into convict stripes. That was nearly a year after the 
Constitution of 1809 had been approved by Congress and the State 
fully restored to the Union. 

The diminutive little coward and tyrant Davidson not long after, 
got into his hands about twenty thousand dollars of State funds 
and levanted, and so far as I know he has never been heard from 
since. The people of Texas in common with all the people of the 
South, had been for more than five years subjected to the domina- 
tion of the scallawag, the carpet-bagger, and the negro, and were 
to such large extent deprived of the right of suffrage, that they 
were somewhat cowed and broken in spirit. 

In no other way can I account for the people of Huntsville sub- 
mitting to the outrage inflicted upon them. As I look back upon 
the day when I, but little more than a youth, went with a com- 
mittee of citizens to protest against the tax levy and martial law, 
and explain that they had done nothing to merit such treatment, 
I recall how contemtuously the petty tyrant Davidson treated the 
committee. I wonder that the people had not risen in a body 
and wiped him and his roving band of buccaneers off the earth. 
I have always regretted that they did not. 

After General Davis ceased to be Governor he remained in Aus- 
tin, and I believe, practiced law. He died in January, 1883, while 
the (I believe) 18th Legislature was in session in the temporary 
capitol. I chanced to be in Austin at the time, and I remember 
hearing a conversation on the day his death was announced, 
which was very interesting to me. 

Hon. Alexander "W. Terrell was at that time a member of the 
Senate, and the Senator from the district of which Limestone 
County formed a part was Hon. L. J. Farrar, a most excellent 
man. He was, as I recall, elected District Attorney in 1866 of the 
Judicial District of which Hon. Robert S. Gould was elected judge, 
and in common with all other office holders elected at the same 
time, was removed as one of the "impediments to reconstruction." 

He lived in Limestone County at the time the robbery by the 
State Police was perpetrated, to which reference was made on a 
previous page. 

Judge Terrell with that proper perception of the proprieties 



54 GOVERNORS WHO HAVE BEEN 

which might have been expected of him, conceived the purpose to 
introduce in the Senate formal resolutions of respect regarding ex- 
Governor Davis, but he knew that it was very doubtful whether 
such resolutions would receive a majority in either Senate or 
House. I happened to be in conversation with Senator Farrar, 
who was a modest, soft-spoken, quiet gentleman, when Judge Ter- 
rell approached him with the manifest purpose of, so to speak, 
"sounding him out" on the matter. With characteristic suavity 
and courtesy he explained the purpose he had in view, and in 
an indirect way made it clear that he wanted to find out if Sen- 
ator Farrar would oppose the adoption of the resolution. Senator 
Farrar readily divined his purpose, and said: "Very well, go 
ahead, Senator, but draw whatever you propose to say d — d light, 
if you expect my vote." 

I assume that the sentiment of the House was sounded out in 
the same way, since the resolutions in terms and tone formal 
and perfunctory were adopted. So far as I recall, there was not 
a single speech of any kind made by any member of either House 
on the resolutions. The time was too near to the tragic events at 
Groesbeck, Tyler and Huntsville, for it to be expected that a 
Texas Legislature would pay tribute to a man, who, being Gov- 
ernor, and vested with great power, was held responsible for the 
most oppressive administration that was ever visited upon any 
people. 

I have said that Governor Davis was reputed to be a very coura- 
geous man. I had never seen him, so far as I recall, until a few 
days before his death, which, as I recollect, resulted from an 
embolism which produced apoplexy. 

His body lay in state before the speaker's rostrum in the House, 
and I looked upon his features in death, and if I had never seen 
or heard of him I would have said he was a man of courage. His 
appearance was strikingly life-like, and his expression seemed to 
say as plainly as if the words had been written on his brow, 
"Death, I am not afraid of you." 

As I have said, he was esteemed to be personally an honest man, 
and doubtless possessed other personal virtues, but his adminis- 
tration will never be forgotten, and most likely never be forgiven, 
at least not for many a day to come. 



AND OTHER PUBLIC MEN OF TEXAS 55 



CHAPTER IX. 

The successor to Governor Davis was Richard Coke of Waco. 
The State Convention met in Austin in, I think, September, 1873. 
I am writing entirely from memory, and may fall into error. 

I do not recall who the contending candidates for Governor 
were besides Judge Coke, except I know Colonel John R. Baylor 
was one, and I believe, Hon. John Ireland. 

I know Colonel Baylor was, because county after county voted 
for him, and the name Baylor was heard so often as the call of 
counties proceeded, that it looked, or sounded rather, as if he 
would poll a large aggregate vote, but his total vote was only 36. 
After the nomination had been made I said to him: "Colonel, your 
frontier friends stood by you." He said: "Yes, I got votes over a 
big territory, but the d — d Injuns have killed all my constituents." 
The Baylors, John R. and George W., were men out of the ordinary. 
All the Baylor family I ever knew or ever heard of were musical, 
and John R. and George W. were no exception to the rule. Both 
played the violin like non-professional Paganinis. 

It used to be said they were "fiddlers and fighters," but the 
last word of the epigram is calculated to create an unjust im- 
pression, for they were not brawlers or hunters of trouble, but 
were gentlemen of unquestioned courage. 

John R. Baylor was a large, brawny man, tall and muscular, and 
who must have been physically very strong. George W. Baylor, 
who died in the recent past, represented El Paso county in the 
Legislature just before his death. He was a tall, slender, light- 
haired man of quiet and unobtrusive demeanor. My impression 
is that the Baylor and Chilton families were related by consan- 
guinity. 

When I was a boy I saw the courage of John R. Baylor tested 
He commanded a regiment in the Confederate Army, and on his 
way back home at the "break up" had to drive through Huntsville, 
where the State penitentiary was then, and (the main prison) is 
still located. Thousands of soldiers were returning wearied and 
dispirited and were in a mood for almost any kind of adventure. 
Clothing for the army had been manufactured in large quantities 
in the prison, and the belief was prevalent that but small part 
of it reached the soldiers, and the belief, whether founded in 
truth or not, inflamed their minds fiercely, so several hundred 
returning home gathered around the prison intending to seize a 
lot of cloth and clothing. 

The financial agent was a nervy old fellow, and refused to sur- 
render any of the cloth that was in his keeping, and the crowd 
opened fire on the building and into the doors, but fortunately 
hurt on one. Boy like, I got up as close as I dared, to see the fight. 
Colonel Baylor happened to be in town, as I have already said, 



56 GOVERNORS WHO HAVE BEEN 



on his way to his home. I remember he wore a long linen duster. 
He went up to the front of the building and made a simple, 
straight-forward talk to the angry soldiers of a disbanded, or at 
least, disbanding army. He told them that they had made a splen- 
did record in the war, and should not mar it by seizing the prop- 
erty of their own State. His words were sensible and conciliatory, 
but many of the besieging crowd were not in a mood to be reasoned 
with. 

The Colonel soon realized that fact, and when it appeared 
that his appeal had been made in vain, he put his hand on his 
big ivory-handled six-shooter and said : 

"I'll be d d if you rob your State. I will protect her prop- 
erty," or words to that effect. The action was one of the highest 
degree of boldness — far bolder than it was prudent. No man but 
one of the highest type of courage would have dared attempt it. 
The State was not robbed. Men in a crowd, however numerous, 
or however inflamed with passion, are going to be slow to at- 
tempt to overcome the resistance of even one resolute man. No 
one of the crowd wants to lead. That crowd that day was no 
exception to the rule. Those angry men, who, under normal con- 
ditions, were law-abiding citizens, saw what manner of man was 
confronting them, and every man knew that if they opened a 
fight, some one or more would be killed, so they withdrew. 

I have been told that the father-in-law of George \V. Baylor ran 
an auction house, or perhaps brought goods through the blockade 
into Houston during the war, and at the "break up" had a large 
supply on hand in a building on Congress Street, between Main 
and Fannin, and he was told the disbanding and demoralized 
soldiers purposed to loot it. 

He was naturally alarmed, and barred and barricaded his store 
and appealed to Colonel G. W. Baylor for a guard. Colonel Baylor's 
regiment was stationed near Houston, and it is said he picked fif- 
teen men out of it, went to the store, removed the bars and barri- 
cade, and opened the doors and put five men in each door and 
stationed himself just outside. By that time quite a crowd, pre- 
senting a threatening aspect, had gathered. He quietly, and with- 
out bluster or bravado, said: "Now, if anybody wants to rob this 
store, let them begin." Nobody began. 

George W. Baylor was an actor in that lamentable tragedy — the 
killing of General John A. Wharton, in 1865 in Houston, just as 
the Confederacy was collapsing. The army was in a state of de- 
moralizatioli, as the men saw the end had come, and discipline 
was impossible. I was not old enough to know much about the 
tragedy, and as my father lived at that time on his plantation, 
we got papers irregularly. 

General Wharton was, as I remember. Commander of Cavalry 
on the Trans-Mississippi Department, and was a gallant soldier of 



\ 



AND OTHER PUBLIC MEN OF TEXAS 57 

an historic family. As I recall, the trouble began over some mili- 
tary matters, and it was said General Wharton called Colonel 
Baylor a liar, and he (Colonel Baylor) went to the headquarters 
of General Magrudcr in the old Fannin Hotel, to complain of the 
language General Wharton used towards him — his inferior in 
rank. 

While he was there. General Wharton came in and the trouble 
w^as renewed. It was clamed General Wharton struck at General 
Baylor with his sword. Whether that was true or not, I do not 
know, but whatever the facts were. Colonel Baylor killed him in 
the twinkling of an eye. He was indicted and the trial created 
great public interest, but he was acquitted. It was a deplorable 
tragedy. Both men were gallant soldiers and gentlemen born to 
the purple. It was difficult to believe that if General Wharton 
was in a normal state of mind, he would have struck at any man 
with the Baylor blood, because he knew the Baylor family, who 
like the men of the Wharton family, would not receive an insult, 
much less a blow, without resenting it, if need be, to the death. 

At such a time as that when a nation was falling and armies 
were disbanding and hopes were perishing, and sorrow filled 
every soul, the minds of men were not normal, and much must be 
pardoned to such conditions and environment. 

The reader, most likely, has concluded that I have forgotten 
the convention and the nominee. Judge Coke, but I have not. 

As I said in the beginning of these disjointed and desultory 
sketches, I had no plan or orders of procedure marked out, but 
would jot down memories as th^y recurred to me, and the Baylor 
brothers deserved all I have said. They fought Indians on the 
frontier and stood guard over the thinly settled lines of pioneers 
who gradually pushed back the frontier, and opened the marvelous 
realm of West Texas to civilization. 

The time I have referred to at Huntsville and the time John R. 
Baylor was a candidate for Governor were the only times I recall 
ever having seen him, and I recall how much he amused me at 
Austin when he said: "I made it a rule on the frontier whenever 
I met an Injun to cross him over Jordan and ask no questions." 

At Austin in 1873 it may be said there began the political career 
of Richard Coke, which closed when nearly twenty-two years later 
he retired from the United States Senate, after eighteen years of 
service. 

Future developments showed that no better selection could have 
been made. It is not meant by this statement to refer to his ad- 
ministration, which was able and progressive, but the reference 
is more directly to the way he met and solved the problems which 
confronted him before he was inaugurated. The situation re- 
quired coolness, courage, and the sternest resolution. 

Thousands of Texans recall how Governor Davis refused to sur- 



58 GOVERNORS WHO HAVE BEEN 



render the office and appealed to President Grant, who was in 
the second year of his second term as President. Governor Davis 
based his refusal to surrender the office on a decision of the 
Supreme Court. 

A Mexican named Rodriguez was charged with voting twice at 
the election in 1873. By habeas corpus the case got before the 
Supreme Court, and the Court held that the election was illegal 
because, instead of being held for four days, it was held only for 
one day. As I recall, the Legislature had changed the four-day 
election law. I never read the decision until I got to this point in 
writing. Life is too short to waste it over such judicial (?) lit- 
erature. The rule of construction adopted was such that the 
Court will go down in the judicial history of Texas as the "Semi- 
colon Court." 

The sobriquet "Semi-colon Court" applied to the Court which 
rendered the decision in the case, Ex Parte Rodriguez had its 
origin in this way: 

Section 6 of Article 3 of the Constitution of 1869 reads as fol- 
lows: 

"All elections for State, District and County officers shall 
be held at the county seals of the several counties, until other- 
wise provided by law; and the polls shall be opened for four 
days from 8 o'clock a. m. until 4 o'clock p. m. of each day." 

The Legislature on March 31, 1873, passed an act, the 12th sec- 
tion of which reads as follows: 

"That all elections in the State shall be held for one day 
only at each election and the polls shall be open on that day 
from 8 o'clock a. m. to 6 o'clock p. m." 

The Court quoted a provision of the Constitution (Sec. 3, Art. 5) 
reading: "The Supreme Court and the Judges thereof shall have 
power to issue the writ of habeas corpus and, under such regula- 
tions as may be prescribed by law, may issue the writ of man- 
damus, etc.", and said it had construed that the different clauses 
were separated by a semicolon. 

Just here I will say that I have not examined the section of the 
Constitution of 1869, but the section as quoted in the report dis- 
closes no semicolon. But assuming it is used in the Constitution, 
as the Court states, I will set forth what the Court said it had held 
in construing that section. They held (they say) that while the 
constitution gave us original jurisdiction in habeas corpus, the 
clause must be so construed, that our jurisdiction in mandamus 
was only appellate and must be regulated by law. 

They cited another section of the Constitution which they say 
was separated by a "semicolon." 

They said further that in Section 6, Article 3, there was a plainer 
separation of the clauses (supposably they meant by a semicolon) 



AND OTHER PUBLIC MEN OF TEXAS 59 

one of which is subject to a limitation or condition, while the 
other was not. 

That the legislature has the power to provide for holding elec- 
tion at other places than the county seat; (here they used a semi- 
colon) but it is equally clear that the Constitution is mandatory, 
and that the legislature has no power to limit the time within 
which the elections must be held. 

The Court laid down the following proposition in grammar, but 
not claiming any special learning in that sphere, I do not assume 
to say whether it is correct or not: 

"Neither will the rules of grammar nor of good composition 
admit of a proviso or condition, placed at the conclusion of an an- 
tecedent clause, applying to the subsequent clause of the sen- 
tence." 

By the method of reasoning above set forth (whether it is sound 
or not, I leave to the reader to determine) the court concluded 
that the legislature had no power under Section 6, Article 3, of 
the Constitution to enact, a law for holding elections for only 
one day, therefore the law was unconstitutional, null and void, 
hence there was no valid election held, and it being no offense 
to vote twice, or any other number of times at an invalid election, 
the Mexican Rodriguez had committed no offense; therefore there 
was no authority for his arrest, and he was ordered discharged. 

The proceeding as a whole presented some novel features. The 
State's counsel were contending that the Court ought to discharge 
the prisoner because his guilt of voting twice had not been 
proved, and because it was a fictitious case, and argued that the 
Court had no jurisdiction because the case was one purely politi- 
cal. 

On the other hand, counsel for the Mexican insisted in the 
Court retaining jurisdiction and determining the question whether 
the Mexican should be held to trial. The assumption seems jus- 
tified that if they had no assurance how the case would be de- 
cided, they had a strong belief on the point. 

The three judges were put in what would appear to have been 
a very embarrassing position, since their official existence was in- 
volved in the result. If their decision was observed and enforced 
Governor E. J. Davis would hold over, and they also. If it was 
decided there was a valid election he and they went out together. 
The decision was wholly ignored, and the plans to hold the gov- 
ernment formed by the Republicans were knocked into "smither- 
eens" by Dick Coke and his foJloweru, and Mr. Justice Walker, 
who wrote the opinion and rested the determination of the future 
of a great state on a "semicolon" was forced to hike himself back 
from whence he came, and these parts have known him no more 
since that memorable day, when Republicanism perished and 
passed in Texas. 



60 GOVERNORS WHO HAVE BEEN 

The Democrats paid no attention to the decision, and prepared 
to take over the office of Governor, and all other offices. Gov- 
ernor Davis evidently believed the Federal Government would come 
to his assistance, and he had many precedents in other states on 
which to build that belief, as the Federal administration had in 
these days, no compunction about overthrowing a state government 
for the benefit of the Republican party. 

Governor Davis summoned the militia and the state police and 
prepared to resist. Governor (to be) Coke prepared to overcome 
the resistance, and made the selection of Major George Bernhard 
Zimpleman who, I believe, was the sheriff of Travis county, 
to aid him and direct his forces. Major Zimpleman had been a 
Terry Ranger, and that being said, it is needless to add, could be 
depended on to do his duty, and help his people. President Grant 
disappointed Governor Davis by refusing him military aid, and 
without such aid, resistance was useless, and Republican rule 
passed in Texas. 

President Grant's reply, when read between the lines, meant 
that since Governor Davis had been in office, and the Republican 
party had been in power for nearly four years, yet the people 
had repudiated them at the polls, he would let Texas work out 
her own salvation politically, and settle her own troubles, and 
that he was tired of being called on to interfere where he had no 
business to do so. 

Governor Coke was promptly inaugurated, as he told me at Gal- 
veston on his way to Austin, he would be. I expressed to him the 
fear that he was going to have trouble. He replied with that de- 
liberation of speech, and his unmistakable and characteristiclisp; 
"You come to Austin in about two weeks and I will be in the Gov- 
nor's office," — and he was. 



AND OTHER PUBLIC MEN OF TEXAS 61 



CHAPTER X. 

If the question were put to me: "Who, in your judgment, was 
the ablest man, intellectually, ever connected with the Government 
of Texas?" I would answer without hesitation, "Richard Coke." 
The general run of people — the common mass — are prone to 
speak of men whom they think possess ability as "smart" men, 
and smartness is, in their minds, always associated with the 
gift of eloquent, or at least, ready and easy speech. Any fluent, 
verbose stump speaker is much more apt to win the title of a 
"smart man" at the hands of the shallow and superficial, than is 
a man of the highest order of intellect who is not dowered with the 
gift of ready and eloquent speech, yet some of the ablest men and 
greatest statesmen America has ever produced, were poor public 
speakers. 

The combination of a high order of intellect, a liandsome per- 
son, and an eloquence of speech is rare. Texas has furnished that 
combination in two men, and, remarkable to say, they were United 
States Senators at the same time — Joseph W. Bailey and Charles 
A. Culberson. 

Richard Coke was not handsome in person, graceful in carriage, 
or gifted as a public speaker, but he had a mind like a machine, 
inexorably logical and capable of deep research, and he had the 
integrity of Aristides and the courage of Caesar. I do not mean to 
convey the impression that he was in any sense a rough diamond. 
He was born a gentleman, and was a graduate of Wil'iani aiul T.Iary 
College at Williamsburg, Virginia. All of the family I iiave ever 
known were educated gentlemen. I met in Richmond, Virginia, 
a few years ago, his brother who survived him, but who has, since 
I saw him, died. He was a lawyer of ability and retired from the 
practice with a competency. Two nephews of Governor Coke are 
among the ablest lawyers in Texas. The Cokes are descended from 
a Virgina ancestry, and the true Virginia gentleman is the highest 
type of man ever fashioned by the hand of the Divine. 

I do not recall that I had ever heard of Judge Coke until he was 
a candidate at Austin in 1873. 

When he became a member of the Supreme Court in 1866, I 
was but a boy, and did not take much interest in courts or judges, 
and after he was removed by military edict in 1867, he remained 
in private life until he emerged as a candidate for Governor in 
1873. He was, I believe, for a short time, district judge, in 1865. 

He was a man of sublime courage, combined with great intel- 
lectuality. While, as I have said, he had none of the graces of an 
orator, he could use his pen with great cleverness and power. His 
opinions in the cases in 29th Texas of Culbertson vs. Cabeen, in- 
volving the law of attachment; Cleveland vs. Williams, the law of 
sale of personal property, and O'Connell vs. Duke, the question of 



62 GOVERNORS WHO HAVE BEEN 

"more or less," in sale of land, have so far as I know never been 
criticised, much less overruled. It was a somewhat strange co- 
incidence that in O'Connell vs. Duke he was passing on a case 
which one of his colleagues, Hon. George W. Smith, had tried as 
judge in the court below, and tried correctly, for he was an able 
lawyer. 

Governor Coke took official action on one occasion which 
brought down upon his head a severer measure of criticism and 
condemnation than has ever been heaped upon any Governor of 
Texas since. I do not undertake to set forth every incident re- 
lated with absolute accuracy of detail, but only in summarized 
form. 

As I recall, the legislature voted a subsidy of $6,000,000 in State 
bonds to the I. & G. N. Railway to promote the extension of the 
line of that road to Austin and San Antonio. Exactly how far 
west of Palestine it had reached at the time I do not now remem- 
ber, but there was no line of railroad across the lovely stretch of 
country between Austin and San Antonio, and as I recollect, the 
only line of railroad into Austin was the present branch of the 
Central from Hempstead, and that was at that time a compara- 
tively recent acquisition for Austin. Possibly the G. H. & S. A. 
Railroad had reached San Antonio from Houston. 

Naturally, the people of Austin and San Antonio and all the 
country between and surrounding the two cities were eager for a 
railroad, and the passage of the subsidy bill was hailed with wild 
acclaim. Governor Coke made no statement with reference to it, 
and the constitutional limit of ten days was nearly at an end, 
when Hon. George Clark, at the time Attorney General under ap- 
pointment of Governor Coke, went to see him about the matter, 
as Judge Clark told me himself. He called Governor Coke "Dick," 
as there was only three or four years difference in their ages. He 
told me he said: "Dick, what are you going to do about that sub- 
sidy bill?" The reply was, "I am going to veto h 1 out of it," 

and he did veto it with such vigor and logic that passage of it 
over his veto was impossible. 

He told the legislature that it had no power to vote taxes on, or 
fasten a debt upon, the whole people for the benefit of a part, or 
for the benefit of any railroad, however pressing the need for ad- 
ditional transportation facilities, or however much the road might 
promote development of the country it would penetrate. He put 
the veto mainly on legal and constitutional grounds, and his argu- 
ment was as unanswerable as a proposition in mathematics. When 
the veto was read to the legislature and the news got to the people, 
there was, if such a phrase be permissible, neither levity or pro- 
fanity being intended, h 1 to pay. 

The people of Austin and San Antonio were wild with rage, and 
exhausted the vocabulary of denunciation, to which "Dick" Coke 



AND OTHER PUBLIC MEN OF TEXAS 63 

paid about as much attention as he did to the breezes of spring 
which caressed the roses in the yard of the Capitol. 

I do not state the result on the popular mind of the veto on my 
personal knowledge or information, but base the statement on the 
authority of two such men as the late Fletcher S. Stockdale of 
Cuero, and the late William P. Ballinger of Galveston. All who 
knew these two men will, with one accord, agree that I could 
produce no worthier witnesses. Judge Ballinger and Governor 
Stockdale were warm personal friends. 

I trust that I may without too great interruption of my story, 
digress just at this point to explain why Judge Ballinger was called 
Judge, and why Governor Stockdale was called Governor. 

I will deal with the explanation as to the latter first. I have no 
book or other data before me, and I was but a mere lad at the 
time, but when Hon. Pendleton Murrah was elected, Hon. Fletcher 
S. Stockdale was elected Lieutenant Governor. I know, because 
he defeated my father for the position, the only instance in which 
he ever suffered defeat at the polls. The illness of his very aged 
mother made it impossible for him to leave home during the 
campaign. Governor Stockdale was a splendid gentleman, and use- 
ful citizen. 

Judge Ballinger got the title from the fact that he was at one 
time a Justice of the Supreme Court of Texas, a fact which I ven- 
ture to say, hundreds of Texas lawyers never knew. 

Governor Coke had a deservedly high opinion of him as a law- 
yer, and a man, and was very desirous that he should become a 
member of the Supreme Court of Texas, and he nominated him 
and the senate confirmed the appointment. I have reason to 
believe Judge Ballinger was earnestly desired to serve, but he 
w^as not in a position to make the financial sacrifice the acceptance 
of the place would have involved. He qualified on the 27th day 
of January, 1874, and resigned the same day. The salary was, at 
that time, $4,500 per annum, and the inadequate salary lost to the 
people of Texas the service of as thoroughly qualified a lawyer, and 
as admirable a gentleman as ever practiced at the bar of Texas, 
or that of any other state. That class of people who look upon 
$375 a month as a princely stipend can understand why more of 
the best lawyers are not on the Bench in Texas, when they know 
what is a fact — that in each of three cases in which Judge Ballin- 
ger was employed in the year 1874, he received approximately as 
much as the State would have paid him for a whole year's service. 

He was succeeded by Peter W. Gray, who resigned after a little 
more than two months' service, on account of ill health. He died 
October 3, 1874. His superior as a lawyer was never on the Dis- 
trict Bench or the Supreme Bench in Texas. 

I return now to the story of Governor Coke and the veto. Gov- 
ernor Stockdale was in Austin when the veto was sent in, and 



64 GOVERNORS WHO HAVE BEEN 

Judge Ballinger told me that he related to him the following inci- 
dent: Public feeling was so highly aroused and threats made so 
freely against Governor Coke that Governor Stockdale and a few — 
perhaps a half dozen — other personal friends and admirers of 
Governor Coke, went over to the executive mansion to call on 
him and stay with him. He received them with courtesy and cor- 
diality, and after the salutions were over, some one of the party, 
perhaps Governor Stockdale, said: "Governor, perhaps you are 
not fully aware to what extent your veto of the subsidy bill has 
inflamed the minds of the people of this city. We have heard 
men indulge in the bitterest denunciation of you, and threats have 
been made to hang you in effigy, and we really fear that there are 
those in the crowd on the streets who even contemplate entering 
these grounds, if they do not enter the mansion, with the purpose 
of offering you and your family some personal indiginty. We 
do not exaggerate the situation, and we felt that it was our duty 
as your friends, and as citizens to come here and offer you the 
benefit of our protection." 

The Governor listened calmly to the explanatory statement, and 
then with characteristic calmness and deliberation, said: "I am 
obliged to you, gentlemen, for your proferred assistance. I deeply 
appreciate it, and I am delighted to have you as guests in the man- 
sion, and you are welcome to stay as long as it suits your pleasure, 
unless your stay be with a view of my protection. I need no pro- 
tection. This mansion belongs to the people of Texas, but for 
the time being it is my castle and my home. My wife and my 
children are here, and I can defend them and myself. That mob 
of which you speak may hang me in effigy if it sees fit on every 
telegraph pole, and every tree on Congress Avenue, and it will 
not alarm me, or disturb my equanimity for a moment; but if any 
man puts his foot within the limits of these grounds with the in- 
tent to insult me or offer any indignity to my family or myself, 
I'll be d— — d if he goes out again until he is carried out feet fore- 
most on a stretcher." The party withdrew and left the Governor 
with his wife and two small sons. 

A man of different mold, a more timid, or at least a more prudent 
man would, out of abundance of caution, have stayed at home, 
and not have ventured upon the streets, but "Dick" Coke did not 
adopt that course. He put on his overcoat and his broad-brimmed 
felt hat, and took his walking-stick, of very generous size and 
weight, and went directly to the nearest point on Congress Ave- 
nue and turned south. In a few moments he came upon a crowd, 
or bunch of excited men, or drew near to them. He waited to hear 
what they were saying, and he found out that it was about him. 
They were, to drop into modern slang, "saying a plenty," and say- 
ing in rough terms and harsh tones. 

He walked up closer before he was recognized, as the street 



AND OTHER PUBLIC MEN OF TEXAS 65 

lights were not bright. He said : "I hear my name being very 
freely used, and from the way it is used, it seems I have given 
great offense and am in danger of being subjected to rough treat- 
ment. Now, I have come out to ascertain whether the time has 
come in Texas when a Governor cannot under his official oath 
exercise the constitutional prerogative of the office of Governor 
without being abused and assaulted. If any of you, or all of you, 
are so offended that you feel disposed to offer me insult or vio- 
lence, I am here, and the time is most opportune and you can 
begin." They did not begin. 

Figuratively speaking, they, like the Roman guard in the garden 
at Jerusalem, "went backward and fell to the ground." Literally 
speaking, they vanished into the encircling shadows quickly and 
the Governor was left alone. He proceeded down the avenue on 
one side and back on the other, and no man dared to interfere 
with him, and he returned unharmed and without affront or in- 
sult having been offered him, to the bosom of his family. No 
man ever doubted his courage. Those whom he led in battle 
swore by him. 

I heard a man say once in the presence of one of my prede- 
cessors on the Bench of the 12th District: "I don't like any man 
like Coke that wears a great flop hat, and long-tail coat, and car- 
ries a big stick, and hollers when he speaks." The old Judge, to 
whom the remark was addressed, was aroused to fury in the 
twinkling of an eye, and said with vehemence: "I like him. I 
like that flop hat, because I have followed him when he was 
wearing it on the battlefield. I like to hear him holler, because I 
have heard him holler, 'Come on, boys,' when the bullets were 
flying and his men were falling around him. I have seen that 
bald head shining when with his big hat off, he was in the lead 
where the fighting was hottest. I like him for all you don't like 
him for." 

The ardent defender of his old commander was, as to courage, 
a kindred spirit, for though he was as simple as a child, and car- 
ried a Bible always in his pocket, and lived according to its 
teachings as he understood them, he would have faced any danger, 
however great, if he thought he was being imposed on. 

I have said that in point of pure intellectual ability Richard 
Coke never had a superior among the public men of Texas, and I 
will add, or among those of other states. I anticipate that this 
sweeping statement will not meet unanimous acceptation, 
but I do not make it without credible evidence to support it, 
which evidence I will produce later. I will ask first, why should 
not Texas have had, or have now within her borders as intellectual 
a man, or men, as there is, or are, in any other state? 

The three familiar adages, "a prophet is not without honor save 
in his own house and among his own people," "distance lends en- 



66 GOVERNORS WHO HAVE BEEN 

chantment to the view," and "familiarity breeds contempt," when 
correlated and summarized mean, "familiarity lessens apprecia- 
tion." It is most often the case that we lose our appreciation 
of the true value of those things to which we become accustomed 
by long familiarity, and the men around and about us are never 
as great as those afar off. We cannot readily associate great en- 
dowment and great achievement with those we meet in the daily 
walks of life, especially if we have watched them grow up from 
childhood. 

This truth is as old as the ages. When divinity incarnate was on 
the earth, and by the power of His omnipotence and omniscience, 
healed the sick, made the lame to leap, and the dead to live, the 
unbelieving multitude asked with querelous skepticism, "From 
whence hath He this power. Is He not the son of the carpenter?" 

They had known Him in despised Nazareth, and had seen Him 
grow up to manhood, and did not believe in Him, though His 
power was revealed before their eyes. 

Hundreds of thousands of people now living knew Richard Coke, 
and, speaking in a figurative sense, the grass has hardly covered 
his grave. They saw him a tall, ungainly, unpretentious, ungrace- 
ful man, who went about without bluster or parade, never seeking 
the limelight. His home was right here among us in Texas — not 
in Greece or Rome, yet he was a great intellect — his enemies so 
conceded, but when I say he was the peer intellectually of any 
man who has ever served in the Senate of the United States at any 
time, I anticipate dissent from the statement will be emphatic in 
many quarters, and Webster and Clay and Calhoun and Benton 
will be cited as evidence against me. They were all intellectually 
great men, but no age of the world, and no period in the history of 
any state or nation has possessed a monopoly of wisdom. 

When Richard Coke was in the Senate, Roscoe Conkling was 
there; Allen G. Thurman was tjiere, and Lucius Quintus Curtius 
Lamar was there, and Matthew Hale Carpenter was there, and I 
am not prepared to admit that they were not peers of the great 
quartette of statesmen named above. 

Senator Coke and Judge A. W. Terrell both told me that Roscoe 
Conkling was the ablest men they ever saw, and when asked 
what member of the Senate he most dreaded in debate, Roscoe 
Conkling, without hesitation, answered, Allen G. Thurman. 

That L. Q. C. Lamar was the peer of the proudest of that great 
assembly many believe, and many capable judges claimed that 
as lawyer and orator Matthew Hale Carpenter stood in the 
front rank of great Americans. 

In that august parliament Richard Coke was thrown in contact 
and, so to speak, in competition, with those men, and if we know 
how he was esteemed, we can best judge of his ability. 

The late Waller S. Baker of Waco, a splendid gentleman and 



AND OTHER PUBLIC MEN OF TEXAS 67 

able lawyer, accorded me the privilege and pleasure of his friend- 
ship. Whenever I was in Waco I was his guest in his hospitable 
home. He told me a short while before his untimely death, which 
carried sincere sorrow to so many hearts, what estimate was 
placed upon the ability of Richard Coke by some of his col- 
leagues. 

In the early nineties the Democrats were in the majority in the 
Senate and the late J. Z. George of Mississippi was chairman of the 
Judiciary Committee. He was concededly a great lawyer. Mr. 
Baker told me that Senator George said to him: "Mr. Baker, when- 
ever, as chairman of the Judiciary Committee, I refer a bill to 
'Dick' Coke for a report and he brings it in, the report is never 
questioned, debated, or discussed, but is at once accepted as the 
last word in the law on the question." 

He told me also that Thomas Francis Bayard, whose grandfather 
and father preceded him in the Senate from Delaware, and who 
was for twenty years a Senator from that State, also Minister to 
Englsnd and Secretary of State, said to him: "Mr. Baker, those 
of us who are now here as colleagues of 'Dick' Coke freely agree 
that he is the ablest intellect in this body, and many of us believe 
that there has never been here his intellectual superior since the 
government was founded." I submit that such testimony is worthy 
of full faith and credit. 



68 GOVERNORS WHO HAVE BEEN 



CHAPTER XI. 

The term for which Governor Coke was elected was, under the 
Constitution of 1869, four years, but the Constitutional Convention 
which met in the fall of 1875 changed the term to two years, and 
it was provided that an election should be held, I believe, on Feb- 
ruary 15, 1876, both for the election of State officers and, if I re- 
call correctly, all other officers, and for the adoption of the pres- 
ent Constitution. In fact, the whole State Government machinery 
was overhauled and changed. The election was held and the Con- 
stitution was adopted, so all the officers elected took their offices 
on the third Tuesday in April, 1876. 

The State Democratic Convention was held in Galveston in 
January, 1876. It met first in the Tremont Opera House, corner 
of Market and Tremont Streets^ but the attendance was so large 
the convention adjourned to Artillery Hall, at the corner of Ave- 
nue I and Twenty-second Street. 

Governor Coke and Lieutenant Governor Hubbard were, of 
course, renominated by acclamation, as I believe were the Supreme 
Court Judges, who had under the then existing Constitution (that 
of 1869) been appointed by Governor Coke. The Court had been 
reduced to three. Then followed nominations for Judges of the 
Court of Criminal Appeals, which was created by the present Con- 
stitution. Pursuant to the order of procedure adopted, there next 
came on the nomination of a candidate for Attorney General, and 
then followed the most dramatic scene ever witnessed in any 
convention. 

The scene was in no sense staged, but was wholly unexpected, 
and the motives and causes which brought it about, absolutely 
spontaneous. 

While the convention was in session in the opera house in the 
course of a brief speech made by the late George P. Finlay of Gal- 
veston he planted an idea in the minds of the members of the 
convention which brought forth a remarkable harvest. He was a 
dyed-in-the-wool Confederate, had been a gallant soldier, and 
was a strikingly handsome man of very impressive appearance. 

He said in substance that the time had come to reward some of 
the brave Confederate soldiers who were qualified for high posi- 
tion, especially those who had been maimed in battle. He spoke 
at the psychological moment, and carried the convention with 
him, thougli adjournment to the new place of meeting followed 
close upon his speech. It seemed from the general sentiment of 
the convention that the nomination would go to that very able 
lawyer and courtly gentleman, Hon. W. M. Walton, known to thou- 
sands as "Buck" Walton. He had been elected Attorney General in 
1866 and been removed from office as an "impediment to recon- 
struction," than which no higher tribute could be paid any man. 



AND OTHER PUBLIC MEN OF TEXAS 69 

The sentiment appeared to be prevalent in the convention that 
it would be poetic, (or probably a better phrase to use is "his- 
toric") justice to return him to a position from which he had 
been driven by military power. The other candidates were, as I 
recall, Mr. W. B. Brack, then of Sherman, later of El Paso, and a 
Mr. Jones from some East Texas County. 

The candidacy of the latter named gentleman did not appear 
to be taken seriously, but Mr. Brack was a foeman worthy of even 
the shining lance of "Buck" Walton. 

After the three gentlemen above named had been placed in nomi- 
nation no other nominations were expected, but another came most 
unexpectedly. 

Dr. M. D. K. Taylor of Marion County, formerly speaker of the 
House of Representatives, and a most accomplished parliamenta- 
rian, was President of the convention. In front, and a little to his 
left, was the Harris County delegation, one of which was Hon. 
J. C. Hutcheson, who in 1893-4-5-6 was member of Congress from 
the Houston District. He had removed to Houston about the 
year 1874, from Grimes County. There had come to the conven- 
tion as a delegate from Grimes County a gentleman of whom 
Captain Hutcheson was very fond, and of whose legal ability he 
had a justly deserved high opinion. The gentleman was Major 
H. H. Boone, commonly known as Hannibal Boone. 

He had won his title by gallant service in the Confederate Army. 
While leading a cavalry charge on one of the battle fields in Louis- 
iana, grasping the bridle reins in one hand and waving his sword, 
or uiing his pistol with the other, a bullet from the Federal lines 
took off part of the thumb and the first and second fingers of his 
left hand, and his right arm at the shoulder joint, leaving him only 
the third and little finger of the left hand. 

He had come to Galveston with no more idea of being a candi- 
date before the convention than he had of being translated like 
Elijah of old, to heaven in a chariot of fire. 

He had never held or asked for an office and wanted none, and 
had not the remotest idea that his name would be mentioned, and 
it was Captain Hutcheson who sprang the surprise on the conven- 
tion. 

He had been a gallant soldier in Lee's army in the battle fields of 
his native state, Virginia, and he knew and loved Major Boone, as 
did every man who knew him. Responsive to the suggestion, if 
not appeal, of Colonel George P. Finlay before referred to, the con- 
vention had nominated for Judges of the Court of Criminal Appeals 
Malcolm D. Ector of Marshall, who lost a leg at Murfreesboro, or 
Franklin, and Clarence M. Winkler, who won high honor as com- 
mander of one of the regiments of Hood's Texas Brigade, and the 
war spirit was in the air. 



70 GOVERNORS WHO HAVE BEEN 

Suddenly Captain Hutcheson rose and said: "Mr. President, if 
we are going to reward with offices brave soldiers, I will nominate 
a man who is both soldier and lawyer — Hannibal Boone of Grimes 
County." The action and words of Captain Hutcheson came like 
"a bolt from the blue" to Major Boone, and he caught Captain 
Hutcheson by the skirt of his coat and said: "Hutch, don't do that; 
I don't want any office; sit down," but the Captain would not 
down. 

It chanced that just then the convention was in a good humor, 
and the members were ready for any kind of excitement, and 
began to call out: "Trot out your man. We want to see him. 
Trot him out." Captain Hutcheson said: "Get up, Boone, and 
go," but the Major held back until the cry: "Trot him out, come 
out," became so loud and insistent that he could not refuse to 
respond. He walked slowly to the platform to the left of the 
President. He was a sincerely modest man, and it was evident 
when he turned and faced the convention that he was both em- 
barrassed and full of emotion. He was not a large or impressive- 
looking man, but his carriage was erect — his step firm, and his 
manners dignified, and he was a gentleman through and through, 
and the convention recognized that fact and became quiet so 
that what he had to say might be heard. He said : "Gentlemen of 
the Convention : I beg to assure you that I am in no measure re- 
sponsible for appearing before you today. I did not come here to 
seek an office. I came as an humble Democrat to represent my 
people in this convention, and on no other mission. I want no 
office. I am a candidate for no office, and I am specially desirous 
that you should know that I am not an object of charity or in 
need of any office." At that point his voice rose higher, and he 
said: "And I, above all things, want this convention to know 
that I ask nothing for this," and at those words he laid his little 
finger, one of the only two, on his left hand, on the empty sleeve 
of his coat that was drawn across his breast, and pinned to the 
left lapel of his coat. 

There may have been some in that convention who did not know 
him, who may have thought that by his words and his action he 
was seeking to play to the galleries and win votes, but those who 
knew him as I did, knew that he was as incapable of pretense or 
dissimulation as is a prattling babe, and was truth and sincerity 
personified. The gesture with the maimed left hand holding the 
empty sleeve stirred the convention, and he followed it by lifting 
his distinct voice, tremulous with emotion until his words rang out 
as clear and thrilling as a bugle call to battle, and said: "But so 
help me, God, I would not exchange it for the baton of the Czar of 
all the Russias." 

His earnestness, his evident sincerity, his dignified bearing, had 
caught the convention, and when he reached his climax of his 



AND OTHER PUBLIC MEN OF TEXAS 71 



brief speech the members were swept off their feet, and a shout 
went up that showed he had won a victory which he did not 
want to win. Major Walton, knightly gentleman that he was, 
came forward and said had he known that Hannibal Boone could 
by any possibility have been induced to become a candidate he 
would not have offered for the place, and the other candidates 
likewise promptly withdrew. Major Boone in due time qualified, 
but proved his sincerity when he said he did not want to hold 
office by declining even to be a candidate for re-election. He en- 
tered office April 16, 1876, and held, as did all officers elected 
that year, until the end of 1878, when he moved his family and 
went back to his home at Navasota, and practiced his profession 
there until his death, nearly twenty years later. He went to his 
grave beloved and mourned by his neighbors and friends as few 
men have been. 

Many lawyers who did not know him personally, and had never 
met him at the bar, were impressed with the idea that sentiment 
had swept into office a man not qualified to discharge the duties 
of the position. A lawyer who entertained that idea met me one 
day on the streets of Galveston and said: "Kittrell, a lot of you 

fellows played h 1 when you put that country lawyer in the 

Attorney General's office." I said: "Why? What is on your 
mind?" He replied: "Why, don't you know that he has advised 
the Land Commissioner that the Galveston, Brazos & N. G. Ry. is 
only entitled to alternate land certificates when so and so, and 
so and so and so and so (naming three law firms) had advised 
the railroad that it is entitled to straight certificates?" 

A member of one of the firms named was Attorney General of 
Texas at 26 years of age — one member of another of the firms 
had been Judge of the Supreme Court and was six years later 
elected Chief Justice. I replied: "Oh, well, it is just a matter of 
difference of opinion between seven lawyers on one side and one 
country lawyer on the other." "Yes," he said, "and the city law- 
yers are going to get out a mandamus and you will see what kind 
of a lawyer you put in." To the surprise of the three firms, the 
Supreme Court agreed with the country lawyer. 

Shortly after he entered upon the duties of the office of Attor- 
ney General he gave the Governor an opinion interpreting, as I 
recall, that section or article of the Constitution relating to the 
setting apart one-half of the public domain for the purposes of 
public education. 

Certain parties interested in such way, as that this opinion was 
adverse to their contention, by an action of some kind tested its 
correctness before the Supreme Court, and again the "country 
lawyer" was found to be right. If I am not mistaken, in the course 
of the opinion the court quoted from the opinion of the Attorney 
General. 



72 GOVERNORS WHO HAVE BEEN 



Any man who seeks to disparage the ability of a lawyer because 
he lives in a country town has much to learn. I have spent about 
eighteen years of my life on the trial bench, several of them in 
a country district, and I have had before me in the country the 
best lawyers I ever saw. I heard the late L. B. Hightower, Sr., 
who for thirty years was judge of the 9th Judicial District of 
Texas, and who died in November, 1917, make in the courthouse 
in a country town where I was holding court, the ablest speech 
in a criminal case that I ever heard or read — such a speech as 
none of the famous criminal lawyers of America could have ex- 
celled — barring none. He was representing the side of the State. 
I shall never forget the exordium of his speech. It was: "Gen- 
tlemen of the jury: I do not live in your county. I live amid the 
primeval forests of East Texas, 'far from the madding crowds' 
ignoble strife,' where the mocking bird sings to his mate, and 
where the winds make music as they steal through the boughs 
of the towering pines, around which the yellow jasmine clambers 
and exhales its rich perfume upon the woodland air. I rarely 
leave my rural retreat, and would not be here today had it not 
been my duty to a friend to come to aid in the legal avenging of 
the murder of trusting innocence." 

He did in fact live, as he said, but was at home in history, 
poetry and the classics. He was a gallant soldier from 1861 to 
1865, and was as honest as fearless and as capable a district judge 
as ever sat upon the bench in Texas. There was no influence on 
earth that could have swerved him "even in the estimation of an 
hair" from the rigid perpendicular of judicial impartiality and 
rectitude. 

The desire to pay a richly deserved tribute to one who was my 
own, and my mother's friend, has caused me to digress from my 
story of Major Boone, who was the friend and fellow soldier of 
Judge Hightower. They had dared death on the battlefield to- 
gether, practiced law at the same bar, and in the heart of both the 
memories of the Southern Confederacy were cherished with a 
devotion that naught but death could abate. 

When Major Boone was wounded in 1863 he and a noble daugh- 
ter of Louisiana had plighted their troth, and purposed being 
married when the war was over, but when he had been maimed 
for life with characteristic generosity and chivalry, he tendered 
her a release from her vows. 

He said when she had promised to become his wife he was in 
the full vigor of health and youth (he was about 28 years of age), 
but he had been maimed and made in a large measure helpless, 
and he had no right to ask her to become his wife under such 
changed conditions. She was, however, a typical Southern woman 
of the old regime. The blood of soldiers and gentlemen ran in 
her veins, and she declined her gallant lover's chivalrous offer. 



AND OTHER PUBLIC MEN OF TEXAS 73 



They were married November 25, 1863, and on their way back to 
the home of Major Boone stopped at my father's home on his 
plantation, and I am old enough to remember that they did so. 
They were accompanied by the Major's colored body servant 
"Ransom," who he kept with him until the faithful negro died. 

My father was proud to have the wounded soldier and his coura- 
geous young wife as his guests, and I have heard him say that 
when Major Boone offered his fiancee her release, she replied: 
"If you have body enough to hold your soul, I will marry you." 
No human body ever encompassed a nobler, knightlier soul than 
did that of Hannibal Boone. 

Some years ago I was in Richmond, Virginia, and visited the 
Confederate museum, formerly the White House of the Confed- 
eracy. I saw in the Missouri Room the picture of Major Boone, 
a very excellent likeness. I said to the lady in charge: "Madam, 
that picture is improperly placed. It belongs in the Texas Room." 
She said: "It was not marked or labeled in any way, and we 
did not know where it belonged." I said: "It belongs in the Texas 
room, and. Madam, allow me to say to you, you have on these 
walls the pictures of many gallant Southern heroes, and you will 
in course of time add many more, but you have not here and will 
not have, the picture of any man, however exalted may have been 
his rank, who was worthier to have his picture hung on these 
walls than was the man whose picture I am pointing to." 

Major Boone was a most genial and delightful companion; fond 
of a good joke and a good story. He often told a joke on me 
which he enjoyed greatly, and which much amused our mutual 
friends. 

He and I were taking dinner on one occasion with a train crew 
at a way station, in what might be properly termed a second-class 
restaurant — the only available place. There was a young lady 
waiting on the table, who had been, owing to straightened finan- 
cial conditions of her family, compelled to engage in that kind of 
service. She had evidently not been accustomed to it, and was 
obviously much embarrassed. 

She was a strikingly beautiful young woman. It might have 
been said of her, as Appius Claudius said when he first beheld 
Virginia, the daughter of Virginius — "Such was not Hebe, or 
Jupiter had sooner lost his heaven, than changed his cupbearer!" 
In serving the coffee I turned as she passed, and struck her arm, 
with the result that the hot coffee was spilled on my shoulders and 
back. The poor girl almost fainted from embarrassment, and as 
she apologized, her eyes were tear-dimmed. I assured her no 
harm had been done, and that it was my fault — not her's, and 
sought to relieve her discomfiture as much as was possible. 
Major Boone's sympathies were aroused, and turning to her with 
that knightly grace with which he might have addressed a queen, 



74 GOVERNORS WHO HAVE BEEN 

said: "My dear young lady, don't be distressed. You are not to 
blame, and he is not hurt. If a man had been in your place and 
the same accident had occurred, my friend might have got angry, 
but you might scald him with hot coffee from his head to his 
feet, and he would swear the sensation was rapturously delightful." 

I assured the distressed young woman that the Major spoke the 
truth, and she was so amused by his gallant remarks that she 
smiled through her tears. 

Somebody who is kind enough to read these rambling and dis- 
connected sketches, may think 1 have allowed the bias of per- 
sonal friendship to betray me into giving too much space to a 
man who was neither Governor, Senator, Congressman, Supreme 
Judge or General, but my purpose is to make record of those 
Texans who most worthily lived and most worthily served their 
state. Rank and reputation never were the hallmark of real worth. 
They are man-made, but God makes men, and Hannibal Boone 
was a man in the highest sense of that term. He was as true a 
friend as ever loved his fellow man. He was a lawyer of the 
very first order of ability. I know, because he practiced before 
me for nearly seven years. He was honor incarnate, and he was 
as gallant and as game a soldier as ever flashed a falchion or 
faced a foe. 

The law of heredity has in the case of his posterity operated 
unerringly. His eldest son at 29 years of age was elected Judge of 
the 12th Judicial District, and filled the position with ability and 
efficiency, and is now Mayor of the city of Corpus Christi. An- 
other son is now Judge of the 79th District of Texas. The widow 
of Major Boone still lives to cherish his memory, and rejoice in 
the character and achievements of her sons and his. 

I recall that during the convention in Galveston it was sug- 
gested in certain quarters that Governor Coke should be called upon 
to announce that he would not be a candidate for or accept the 
position of United States Senator — at least such was the rumor 
which drifted about the hotels and the convention hall, but no such 
announcement came. 

When the Legislature met he was elected United States Senator 
and began his service in that position March 4, 1877, and re- 
tained his scat for eighteen years, without, so far as I recall, even 
a suggestion of opposition. I heard some year or two after he 
entered the Senate, a very interesting, indeed amusing conversa- 
tion in Galveston between a Republican named McCormick and 
the very well known, indeed famous. Major Thomas Peck Ochil- 
tree. 

I chanced to be taking dinner at the same hotel table with 
the two men, and the Major was sitting at one end of the table and 
Mr. McCormick on his right. Something was said about Senator 
Coke, and McCormick at once launched out into a criticism of his 



AND OTHER PUBLIC MEN OF TEXAS 75 

appearance, and dress, and style of speaking, dwelling specially 
on his broad-brimmed hat and big walking-stick. The criticism 
was very similar to that indulged in several years later by the 
man who offended the old Judge who had been Senator Coke's 
fellow soldier, an incident I have already related. The Major 
turned up towards McComick, the eye in which there was a de- 
cided cast, and as he continued to eat rapidly, said very abruptly: 

"You are a d d fool. You don't know what you are talking 

about?" McCormick, somewhat taken back by the suddenness 
and bluntness of the remark, said: "I'd like to know why." "Be- 
cause," Major Ochiltree said, "Dick Coke dresses that way down 
here among his own people, but don't you know that in Wash- 
ington he wears tailor-made suits, and ruffled shirts, with diamond 
studs and a three-story silk hat, and wears kid gloves and carries 
a gold-headed cane," all of which was purely imaginative descrip- 
tion, of course. Continuing, Major Ochiltree said: "You wait 
until 1882 comes around and he will come down here and get into 
that long-tailed coat, and put on that old flop hat, and get out his 
old hickory walking-stick, and bellow on the stump like a prairie 
bull, and spit on his shirt front, and sweep the decks like a hurri- 
cane." 

McCormick was not convinced by the unique prediction, and 
insisted, "Old Coke," as he termed him, "could never be elected 
again." I heard and saw the famous Major's prediction fulfilled 
literally. I was in Austin the day the Senatorial election came off 
in the legislature which sat in the temporary capitol in 1883. 
There was no other candidate but Senator Coke, and every vote 
in the Senate had been cast for him, and I chanced to be in the 
House when the roll was called. 

Beginning at "A" on down through the alphabet, the roll of 
members was called, and the unbroken line of responses was 
"Coke." The last name on the roll was Wyatt, and the owner of 
that name was a negro as black as a lump of charcoal. When his 
name was called, he answered "Coke," so, as Major Ochiltree had 
predicted, nearly five years before, "Dick" Coke swept the decks 
like a "hurricane." 

The social and fashionable atmosphere of Washington was in 
no wise congenial to Senator Coke. He had no taste for such 
frivolity, and I heard his colleague, that courtly gentleman, Sena- 
tor Sam Bell Maxey, once tell a very amusing joke on Senator 
Coke. 

He said: "One day Coke came to me in apparently great per- 
plexity and distress and said: 'Maxey, I have received an invita- 
tion from President Arthur to dine at the White House, and I 
haven't got any kid gloves, and I don't want to wear any, and I 
don't know what to do.' I said, I am going to dine with the 
President this evening and I will talk to him about it. During 



76 GOVERNORS WHO HAVE BEEN 

the evening I told President Arthur of the dilemma he had placed 
my colleague in, and the President laughed heartily and said: 
'Oh, tell Coke to come along and never mind about kid gloves.' " 
I will interject into the story at this point that the President made 
quite a concession to the Senator from Texas because he was 
very scrupulous in the observance of all the conventionalities. 
He was said to have been more thoroughly au fait in all matters 
of social usages and customs as they prevailed in high society 
than any President ever in the White House. He was essentially 
a gentleman, cultured, courteous, kind, and considerate, and of 
most elegant manners, and did not intend that the Texas Senator 
should be barred from the White House on account of any con- 
vention concerning his garb. If he did not care to come in 
costume de rigiier, he should come anyway. 

Continuing, Senator Maxey said: "I didn't have the opportunity 
to talk with Coke again until after the day of the dining had 
passed. When the opportunity presented, I said: 'Coke, did you 
ever find a pair of gloves?' He said: 'I did, but came mighty 
near not doing so. I went down Pennsylvania Avenue on one side 
and back up on the other, and could not find a pair big enough. 
After so long a time I went into a little hole in the wall on a 
side street and found a pair that I could get on, and when I did 
get 'em on, my hands looked like a pair of canvassed hams, but I 
wore 'em, but the gloves weren't the worst of my troubles. It 
was the trails of the women's dresses. 

" 'I saw a powerful fine looking woman bowing to me, and I 
bowed, and she bowed, and I bowed again. I didn't know who she 
was, but thought maybe she desired to see me, so I started towards 
her. When I moved, she moved off, with her back to me. Now 
do you know what was the matter? I was standing on the trail 
of her dress, and I'll swear I wern't in fifteen feet of her.' I 

said: 'Did you get your gloves off safely?' 'H 1,' he said, 'I 

tore 'em off.' " 

When Governor Coke became a Senator, March 4, 1877, of 
course, automatically. Governor Hubbard became his constitu- 
tional successor. He was an interesting man, and possessed in 
no small degree the gift of eloquence. He was well born and 
well educated. When only 23 years old, he was appointed United 
States District Attorney, and afterwards served his county in the 
Legislature. 

He commanded a regiment in the Confederate Army, and in 
1873 and in 1876 was nominated for Lieutenant Governor, and of 
course, elected. He was temporary chairman of the convention 
which nominated Grover Cleveland in 1884, and canvassed sev- 
eral middle western states during the ensuing campaign. 

It will be remembered that the R(*publicans dug up and used an 
incident in the past private life of Mr. Cleveland as campaign 



AND OTHER PUBLIC MEN OF TEXAS 77 

material. The charge was unquestionably true, and the facts 
soon became public property. It was that Mr. Cleveland who, at 
the time of his nomination (and election) was a bachelor, was 
the father of two children, the name of whose mother was Maria 
Halpin. It was said at the time the matter was brought up that 
Mr. Cleveland was preparing to issue an explanatory statement, 
but during that campaign Arthur Pue Gorman, Senator from 
Maryland, and one of the most astute politicians in the United 
States, was chairman of the National Democratic Executive Com- 
mittee, and it was said he wired Mr. Cleveland the laconic advice: 
"Tell the truth," and that message became a campaign slogan. I 
recall the incident, not for the purpose of reviving anything de- 
rogatory to Mr. Cleveland, but because it became the medium 
through which "Dick" (as he was commonly called) Hubbard 
effectually squelched a man who interrupted him in one of the 
audiences he spoke to during the campaign. 

The fellow tried to heckle the speaker by asking: "What about 
Maria Halpin?" As quick as a flash, "Dick" Hubbard gave the 
heckler the quietus he needed. None who remember him have 
forgotten his immense rotundity, or his big eyes and his deep, 
sonorous voice, and the habit he had of emphasizing his best 
points by shaking his head vigorously from side to side. Pointing 
his finger at the man who had asked the question, he said in tones 
that could have been heard half a mile : "Never you mind about 
Maria Halpin. She has nothing to do with this campaign, and 
let me tell you, young man, that the Democratic party has in the 

course of her history been guilty of many d d fool acts, but 

she never yet put a gelding in the race for President." The crowd 
howled its approval. 

A change of 555 votes in New York would have elected Mr. 
Blaine, so it is within the range of possibility that the ready retort 
of the Texas Ex-Governor brought about a Democratic administra- 
tion and gave the nation one of its great Presidents. 

I say it was possible because the retort of "Dick" Hubbard was 
flashed over the whole counry. It may be that I have not given 
his reply verbatim et literatim, but have given the witty and truth- 
ful meaning. 



78 GOVERNORS WHO HAVE BEEN 



CHAPTER XH. 

The question of pardons and commutations gave Governor Hub- 
bard much trouble and worry, and his sympathies were often 
wrought upon distressingly. There was no Board of Pardon Ad- 
visers at that time to serve, so to speak, as a breakwater against 
the flood of tears he had to encounter. 

Major H. H. Boone was Attorney General during his adminis- 
tration, and he told me that one very hot day he went to the 
Governor's office to see him on business, and just as he arrived 
at the office the Governor entered. He had walked over from the 
Mansion, and as he was about five feet nine inches in height and 
weighed over, or about, 300 pounds, he was sweltering and sweat- 
ing. He opened his shirt front and siezing a big palmetto fan, 
stirred the air vigorously, saying as he did so: "Major, I have 
just had an awful time. I went home to dinner (the new fangled 
designation "lunch" for the midday meal had not at the time 

reached Texas), and when I got there the mother of (naming 

a man in Southwest Texas, who was under sentence of death) was 
there, and his wife was there, both pleading for the son and 
husband. The mother cried, and the wife cried, and Mrs. Hub- 
bard cried, and d n it, I cried. Oh, it was a fearful time, but 

I can't pardon the man who committed such a crime," and he did 
not pardon him. The sentence of the law was carried out. 

I was riding with him once on a train shortly after his return 
from Japan, to which country he was appointed Minister in 1885 
and served four years. I asked him what the state of morals 
was in the society of Japan. He opened his eyes wide and lifted 
his eyebrows and shrugged his broad shoulders, and said: "Oh, 
pretty much like it is everywhere, but they have some pretty sen- 
sible regulations there. A man can have his concubine, but before 
he enters into that kind of relation, he must with money, or stocks, 
or bonds, or other property, insure the comfort of his legitimate 
family, and that is very just. Then again they have a regulation 
that he must not keep the concubine in the part of the city where 
his family lives, but away over in some other part of the city," and 
then he made one of his indescribable grimaces, while his eyes 
twinkled, and he punched me in the ribs with his thumb and 
said: "And let me tell you, that is a first-class, sensible kind of 
an arrangement, sure as you are born." 

The fight against him for the nomination was led by some able 
men and was very bitter, while the friends of Governor Throck- 
morton were, as was always the case with them, enthusiastic, 
faithful and devoted. As I recall, the candidates themselves in- 
dulged in no charges or recriminations. Both were gentlemen. 
Those opposed to Governor Hubbard brought up a charge once 
made that he had borrowed money in some way that associated 



AND OTHER PUBLIC MEN OF TEXAS 79 

the transaction with persons who had dealings with the State, and 
it was intimated that his action was an infraction of the proprie- 
ties, if not forbidden by law. 

There was, I am sure, no foundation for any allegation im- 
peaching his integrity, and now since he and the friend who came 
to his relief have both passed beyond the reach of human praise 
or blame, it gives me pleasure to set down what was told me. 
A well known man in comfortable financial circumstances, was a 
very close friend of a much older man than I, with whom I was 
associated in the practice of law, when Governor Hubbard was 
Governor. That gentleman dropped into my office one day and 
the matter of borrowing the money by Governor Hubbard came up 
in the conversation, and the visitor said: "All the talk about 
Dick Hubbard getting money by improper methods is the veriest 
rot, and does him gross injustice. I will give you all the facts, 
and they are few: I have known Dick Hubbard for a long time 
and always go to see him when in Austin. One day I called and he 
was evidently much disturbed in mind and said to me: 'Henry (his 
given name), did you ever owe a whole lot of petty debts about 
which you were being bedeviled every day and not have the 
money to pay them? If you have, you know the fix I am in, and 
how I feel.' I said: Dick, how much do you owe? How much 
will it take to clean you up? He said: 'About $3500, and I 
could get it from a well known firm in Galveston (which firm 
was said to have made the loan), but those people have contracts 
or dealings with the State, and I cannot go to them.' I said: I 
tell you what you do, Dick, make your note for $3500 for such time 
as will suit you and I will endorse it. He made the note. I en- 
dorsed it. He got the money, and I paid the note, as I expected to 
have to do, and that is all there is to the talk about Dick Hubbard 
borrowing money improperly." I believe the story was true, be- 
cause the man who told it to me was amply able to wait for his 
money, and he had no contracts with the State nor any business 
relations with the State or the Governor, and he could have had 
no motive to invent a false story. If Governor Hubbard did not 
pay the note his friend endorsed when it was due, it was not 
because he did not recognize his legal and moral obligation to do 
so, but because of sheer inability. He was not gifted with the 
capacity to either make or save money, and the number of his 
kind is legion. 

The ability to make money is a special endowment — a distinct 
gift of nature. Men who can plan largely, and forecast in a 
practical way material results for others, cannot so contrive by 
honest methods as to transmit their conception into cash. 

As I recollect, Governor Hubbard was the moving spirit — the 
procuring cause, to use a legal phrase, in the building of the 
Cotton Belt Railway. He desired to promote the prosperity and 



80 GOVERNORS WHO HAVE BEEN 

development of the section of the State in which he lived, but he 
did not so plan as to make money for himself, as many a man 
with less intelligence, and less principle, would have done. 

Many public men who understood and discussed with intelli- 
gence great financial questions of national importance were al- 
ways in debt, indeed bankrupt. They belonged to a class, as did 
Governor Hubbard, in the eyes of which the only potential value 
a dollar had was what it would buy for immediate use. Its value 
for what it would make, or its productive capacity, had for 
them no existence. No man discussed more ably great financial 
questions than did the late Daniel W. Voosheer of Indiana, who 
was a great lawyer and an almost matchless orator. I stood one 
day two hours under an autumn sun and listened to him without 
tiring or being bored — on the contrary, was held spellbound. He 
appeared successfully for the defense in some of the most noted 
murder cases ever tried in the United States, and must have 
earned large fees. He was for more than thirty years in Con- 
gress, first in the House and later in the Senate, yet at the time 
of his death, twenty-three years ago, it was being arranged with 
President McKinley, who was very fond of him, to give him some 
appointment for which his ability fitted him in order to provide 
relief of his financial condition, brought about by his utter indif- 
ference to the value of money, and to its accumulation or the 
saving of it. 

No great financial question or any other great national question 
ever came up in the United States Senate that the great mind of 
Daniel Webster did not illuminate it, and he was, besides, one of 
the great lawyers of America, yet his friends and admirers in 
Boston took up regular collections to prevent his being absolutely 
without money. Then again, even if a man in public life be not 
devoid of the ability to make money, if he gives to the people 
that measure of service which he owes them, he has no time to 
make money. 

To plan for proper legislation and meet the ever-changing and 
never-ceasing demands of the public welfare leaves no time to plan 
for speculations, and if they did, the order of mind and line of 
thought required for the latter is wholly different from that re- 
quired for the former. The real statesmen and the practical 
financier is rarely combined in one man. No Governor or legis- 
lator in Texas who does his full duty can make any money out 
of the office, if he is honest. Governor Hogg, after he left the 
Governor's chair, demonstrated the possession of the ability not 
only to lay practical financial plans, but to successfully execute 
them, yet I have heard that he said that when he left the Gov- 
ernor's office in January, 1895, he only had $50 in money. He 
left public station with clean hands, a clear conscience, and a 
practically empty pocket. 



AND OTHER PUBLIC MEN OF TEXAS 81 

It is eloquent testimony to the character of the men who 
have filled the gubernatorial and other executive offices of Texas 
and the numerous judicial positions, that despite the fact that 
they have at all times been paid inadequate salaries, yet in seventy- 
five years there has been but one instance in which a public 
servant of Texas has proved faithless to his trust, and he was 
driven from office. 

Governor Roberts was succeeded as Governor by John Ireland of 
Seguin, Guadalupe County. John Ireland was in some respects, 
a most remarkable man. He was much misunderstood by those 
who were thrown in personal contact with him. He appeared to 
be stern and cold. Such an estimate was, in my judgment, most 
erroneous. He came to Texas at an early day and achieved suc- 
cess under many adverse conditions. He was a member of the 
House of the 13th Legislature, which met while E. J. Davis was 
Governor. He belonged to the minority, and a man of his character 
and ability in such a body was like a rare jewel cast into a pile 
of pebbles. At the next election he was sent to the Senate from 
the Seguin District, and there fought all the extreme legislation 
proposed by the Republican administration. 

He opposed with earnestness and ability the I. & G. N. subsidy 
bill which, though it passed. Governor Coke slew it with a veto. 
He was one of the district judges elected in 1866 who was re- 
moved a year later by military edict. He had no aptitude for 
electioneering. He was not a good "mixer." There was nothing 
of hail-fellow, hand-shaking, back-slapping politician in his make- 
up; yet, as I recall, he had no opposition for the nomination for 
Governor in 1882 and of course had none in 1884. 

His competitor in both races before the people was one worthy 
of the steel of any foeman — Colonel G. W. Jones, commonly known 
as "Wash" Jones. He was elected to Congress in, I believe it was, 
1880, by 274 majority over the brilliant, popular, and able Seth 
Shepard of Washington County, who died only a year or two since 
in Washington City where, for twenty-five years, he was a mem- 
ber of the Court of Appeals of the District of Columbia. Colonel 
Jones was a far more effective public speaker than was Gov- 
ernor Ireland — indeed, was a power on the stump, both because 
he was able, eloquent, and logical, and because he was honest 
in his convictions. I do not recall that I ever saw him but once 
in niy life, but if my memory serves me correctly, he was elected 
Lieutenant Governor at the time J. W. Throckmorton was elected 
Governor. I have no data before me on that point, but such is 
my recollection. It is doubtful if any other man in Texas could 
have polled 102,501 votes to 150,809 cast for Governor Ireland. 

While Governor Ireland was in office he was ex-officio a mem- 
ber of the Capitol Board, one of the duties and responsibilities 



82 GOVERNORS WHO HAVE BEEN 



resting upon which was to select the kind of material out of 
which the State Capitol should be built, 

I was riding with him on one occasion on the train, and that 
subject came up, and he referred to it in these words in sub- 
stance : "The other two members of the Board were of the opin- 
ion that in view of the difficulty of getting sufficient limestone 
in Texas, it would be advisable to resort to Indiana limestone, 
and they favored that course, or were so inclined." He evi- 
dently had no thought in his mind that his associates on the Board 
were influenced by any purpose, save and except, to do what 
appeared to be right and best. Continuing, he said: "I said: 
'Gentlemen, you and I comprise the Capitol Board, but if you 
will examine the law carefully you will see that while that is true, 
yet the Governor is made the final arbiter in the matter of choice 

of material, and I'll be d d if the Capitol is not going to be 

built out of Texas material,' " and it was, and is a monument to 
the wisdom and state pride of John Ireland. 

At the next election his vote increased over 60,000 while that of 
Governor Jones decreased over 14,000. 

From some time in 1875 until the third Tuesday in April, 1876, 
Governor Ireland was a member of the Supreme Court. He wrote 
the opinion in the case of Lewis vs. Aylott, 45 Texas, which is to 
be found on page 190 of the report, which is before me as I 
write. It laid down the law to be that real estate cannot be 
devised bv nuncupative will in Texas, and the holding has never 
been departed from. I consider the opinion a very able one. 

The paragraph of the opinion which is third on page 202, is 
full of words of warning and wisdom. 

I remember well when the case was brought. The attorneys for 
the losing side had only moved to Galveston a short time before. 
I went there a green, inexperienced country youth, and became 
associated with a much older man than I, and his office was in 
the same building into which counsel for the appellant estab- 
lished their office a short while after I reached Galveston. They 
wei'e Hon. Richard S. Walker and his son, John C. Walker. The 
son and I were about the same age — possibly I was a year or 
two his junior. Judge Walker, the father, was a very able lawyer 
and a most charming gentleman. If I am not mistaken, he had 
lived and reared his family in East Texas, making his home at 
Nacogdoches. The brief for the appellant in Lewis vs. Aylott 
reveals his thorough learning in the ancient law relating to real 
estate and its transfer by will. Andrew P. McCormick, after- 
wards United States District Attorney and United States District 
Judge, who died only a few years since at a very advanced age, 
while Judge of the United States Court of Civil Appeals for the 
5th District, was trial judge, and a most excellent one he was. 
He was a native Texan, born in Brazoria County in the early 



AND OTHER PUBLIC MEN OF TEXAS 83 

thirties, and as a practitioner and a judge had become thoroughly 
familiar with Texas law, and besides was learned in the com- 
mon law. 

I hold him in grateful remembrance for the kindness and con- 
sideration shown me when an inexperienced neophyte I first ap- 
peared before him. His judgment in Lewis vs. Aylott was af- 
firmed. Judge Walker, as I recollect, was in a short while ap- 
pointed to the District Bench in his old district, and retired from 
the firm of Waul, Walker & Walker, which was formed after the 
Aylott case had been tried. The firm then became Waul & 
Walker and so remained for many years. It did an extensive 
and important practice, deservedly so, because both members 
were very capable lawyers and men of high character. As I have 
already said. General Waul died a number of years ago. Mr. 
Walker still lives in Galveston, but is much impaired in health. 
Appellees won their case, but their counsel knew they had had a 
fight. 



84 GOVERNORS WHO HAVE BEEN 



CHAPTER XHI. 

The election in 1876, when a full state ticket and a lesislature 
was elected, took place, as I recall, on February 15th, and all 
officials went into office on April 18th, Governor Coke was Gov- 
ernor and held the position until he resigned early in 1877 to 
take his seat in the United States Senate. 

In either 1876 or 1878, I am not sure which, probably the earlier 
year, Thomas R. Bonner of Tyler, Smith County, was Speaker of 
the House. 

He was a man of ability, and impressive appearance, and a very 
accomplished parliamentarian, and elegant gentleman. There 
was some legislation sought concerning the Texas & Pacific Rail- 
road and the bill was known as the Texas & Pacific bill. The 
opposition to it was very strong and the fight over it became 
very fierce. As I recall, some question of parliamentary law arose, 
and telegrams were sent to the Hon. James G. Blaine and Hon. 
John G. Carlisle, two of the greatest parliamentarians then in the 
United States, to get their opinions, and, as I remember, was sent 
as one message to both men. 

During the parliamentary battle a very amusing incident oc- 
curred. The minority had adopted a plan of opposition often 
employed before, and since, of breaking a quorum, by leaving 
the hall and refusing to attend the sessions of the House. One 
of the members from Harris County was a well known lawyer by 
the name of Barziza, who was by his intimate friends and pro- 
fessional brethren generally addressed as "Bar," a term of affec- 
tion. He was black-eyed, and black-haired, and of Italian descent, 
and was bright, energetic, eloquent and interesting. He was, for 
many years, a law partner of the late Charles Stewart of Houston, 
which fact avouched him a capable lawyer. He was one of the 
bolters. 

One of the members from Galveston was a very estimable 
man — a Jew — who had, as an importer of coffee and a banker, 
acquired a comfortable fortune, and who had the deserved respect 
of every man who knew him. He was inclined to portliness, and 
was dignified and inclined to keep out of the limelight. The per- 
sonality of the two men, Mr. Barziza and Mr. Kopperl, was as dif- 
ferent as it is possible to imagine. 

The one was fiery, impetuous^ bold, quick, and ready in speech, 
with a clear, ringing voice, and with the dramatic quality highly 
developed, the other slow and hesitant of speech, with no ora- 
torical gifts, and no self-assertiveness, but apparently timid, and 
with a voice which had in it no fire or fervor. 

The Sergeant-at-Arms was instructed to arrest and bring in the 
bolting members. When he brought "Bar" in he stood by his chair. 
The Speaker said: "The gentleman from Harris will take his 



AND OTHER PUBUC MEN OF TEXAS 85 

seat." The gentleman from Harris, with his black eyes flashing 
and his sturdy figure tense and erect, said in clear, ringing 
tones: "I decline to be seated until compelled by force." "The 
Sergeant-at-Arms will seat the gentleman from Harris," the 
Speaker promtly replied, and the order was obeyed. 

The gentleman from Galveston was in the line of "prisoners" 
right behind "Bar." He stood in the aisle opposite his seat with 
hands hanging at his back in the exact attitude of a school boy 
prepared to recite "The Boy Stood on the Burning Deck." 

The Speaker said : "The gentleman from Galveston will take 
his seat." That gentleman had seen "Bar" enact the dramatic role 
and, to use a slang phrase, "get away with it," so he followed his 
example. In weak, piping, tremulous tones scarcely audible to all 
the members, he said: "I decline to be seated unless compelled by 
force." Quick as a flash, the Speaker said: "If the gentleman 
from Galveston prefers to stand he can do so," and bringing his 
gavel down with a ringing stroke, said: "Call the next name, Mr. 
Clerk," and the gentleman from Galveston was left standing, over- 
whelmed with embarrassment, and had to quietly sink into his seat 
without being "compelled by force." 

The personality of the two men made the difference in the 
two cases. What was dramatic and interesting on the part of one, 
became unimpressive and absurd on the part of the other. 

That indefinable and elusive quality, or element, in character 
called personality is defiant of explanation or analysis, but it has 
made and unmade the political fortunes of many men. 

It is the essential element in what is known as personal popu- 
larity, and a large factor in eloquence. 

It is said that when that great politician — yea more — statesman, 
William H. Crawford of Georgia was presented to the King of 
France as Minister from the United States, the King bowed to him 
twice— an act without precedent, but which was an involuntary 
tribute to the majestic and compelling personality of the great 
American. 

I have heard or read somewhere that on one occasion a politi- 
cal rival made a very severe attack on that great orator, Sargeant 
S. Prentiss. When the attacking speaker had finished, Mr. Pren- 
tiss did not utter a word, but stepped to the front of the stage or 
platform, and leaning on his walking cane (he was, I have 
heard, a cripple) drew himself up to his full height, which was 
not above medium, shook back his long hair, and looked de- 
fiantly first at his enemy, then at the great crowd, and stood for 
a moment before them in perfect silence. Soon a shout went up 
that sook the building and his enemy was overwhelmed. 

If he had spoken in reply the result would not have been sur- 
prising, because as far as I am capable of judging, though I never 
saw him, he was the greatest orator the world has ever seen since 



86 GOVERNORS WHO HAVE BEEN 

Paul preached on Mars Hill, but to have enthused and swept a 
crowd off its feet by merely standing in silence before it, was a 
triumph of the power of personality. 

We are told in Holy Writ that when the Master in the garden 
beyond the brook of Cedron uttered the three simple words: "I 
am He," the band of officers who had come to take Him "went 
backward and fell to the ground." His was the awe-inspiring per- 
sonality of divinity incarnate, and it is of course not meant to 
even appear to compare any mortal man with Him who was "born 
in Bethlehem," but the instance illustrates the marvelous power 
of personality. It confirms the report of the soldiers who had 
before that gone out to arrest Him, but came back without Him, 
and when asked for an explanation, said : "Never spake man like 
this man." 

Sam Houston possessed the attribute of a most impressive per- 
sonality, combined with the dramatic faculty. Had he chosen the 
stage as his life vocation, he would have risen to a prominence 
in the field of the drama equal to that attained by Booth or For- 
rest. Shortly before his death his beard had been permitted to 
grow out and he had lost weight. He was sitting one night in the 
hotel which stood where the Rice Hotel now stands in Houston, 
his chair leaning back against the wall of the lobby. 

A group of young Confederate staff officers standing near were 
discussing the cases of several men who, like General Houston, 
were Union men — two or more of whom had been arrested. The 
officers were in full uniform and the sleeves of their coats were 
covered with a profusion of "gold braid;" and though not one of 
them had ever smelted powder, or heard a bullet whistle, they were 
loud and coarse in their denunciations of "Union men." 

At last one of them said : "Yes, and there is that d d old 

coward and traitor, Sam Houston. I would like to run my sword 
through his heart." In an instant the old general's chair came 
down with a sharp thud on the floor, and he rose to his full 
and majestic height and placing the forefinger of his left hand 
over his heart, and pointing the forefinger of his right hand in 
the face of the dudish officer who had coupled his name with 
cowardice and treason, said in tones which thrilled and awed: 
"Here is the heart of Sam Houston, and the man who says it is the 
heart of a coward or a traitor lies in his teeth, lies like a dog 
that he is." In the twinkling of an eye the party of traducers van- 
ished, leaving the old man standing triumphant, the very incar- 
nation of defiant and towering rage. That "band went backward 
and fell to the ground." That man never lived who unchallenged, 
could impeach the courage, or fidelity to conviction, of Sam 
Houston. 

After his vote on the Kansas and Nebraska bill, he went to 



AND OTHER PUBLIC MEN OF TEXAS 87 

the town of Brenhani for the purpose of delivering a speech on 
the political issues of the day. 

He could have gone to no place in Texas where opposition to 
the policies advocated by him was more intense. When he rose 
to speak in the courthouse he was, for the first time, refused a 
quiet hearing by a Texas audience. Derisive shouts and "cat- 
calls" greeted his appearance on the speaker's stand. 

He paused, and bowing in his stately and impressive manner, 
said: "I beg pardon." His words seemed so irrelevant to the 
situation that silence fell upon the audience. 

Again he bowed and said: "I beg pardon," and the silence 
became, if possible, more intense. 

After a pause, he proceeded: "I beg pardon, I have no right 
to speak here. I am not a citizen of this county. I own no prop- 
erty here. I did not contribute by payment of taxes, or otherwise,, 
to buy a brick, or a beam, or a rafter, in this building, and I 
humbly crave pardon for presuming to attempt to speak under 
this roof," and again he bowed. 

Then stretching his majestic figure to its full height, in a voice 
that rang out like the notes of a trumpet, he said: "But if there 
be one man in this presence who desires to hear Sam Houston 
speak, if he will follow me to yonder sloping hillside, under the 
shade of yon spreading live oak, on the soil of Texas, I have the 
right to speak there, for I have watered it with my blood." 

After a moment of utter silence, a shout went up that shook 
the building, and if any man had dared interrupt him from that 
time, the crowd that a few moments before derided and mocked 
the old man, would have torn the offender limb from limb. 

A great man spoke at the psychological moment, and with a 
master stroke touched and stirred, and thrilled human hearts, and 
in a moment transformed a hostile audience into one ready to 
listen in respectful silence. 

There have been many men who loomed large in the public eye 
and who exercised deserved influence on the public mind, who 
were in a certain sense always "boys" and who were addressed 
by thousands of people as "Bill" or "Dick" or "Steve." 

Stephen A. Douglas was a great lawyer, a great orator, and a 
man of magnificent intellectual ability, and was once candidate 
for President of the United States. 

Among his devoted friends was Beverly Tucker, a member of 
Congress from Virginia. It is said that on one occasion Mr. Doug- 
las came over from the Senate to the hall of the House and went 
to the seat of his friend Tucker and sat down on his lap and put 
his arm around his neck, and said: " 'Bev,' old boy, what office 
do you want when I get to be President?" "Bev" said at once: 
"None at all, Steve." "Well, what do you want me to do for you?" 
Bev replied: "I want you to come and sit on my lap and put 



88 GOVERNORS WHO HAVE BEEN 

your arms around my neck and say: 'Bev, old boy, I love you.* 
That's all I want." 

There have been, and are other great men who could not pos- 
sibly be actors in such a scene. It is impossible to imagine any 
man slapping Robert E. Lee on the back and calling him "Bob." 
The very idea is inconceivable. 

He was courteous, kind, gentle, sympathetic, approachable, and 
possessed of marvelous grace and charm, but no man would ever 
have dared attempt any such familiarity with him as was in- 
dulged in between a great Senator and a Congressman. 

I knew him when I was a mere boy at college. His kind and 
gentle nature was clothed with an indescribable dignity and re- 
serve which imperatively forbade familarity. His majestic per- 
sonality, translated into words, appeared to say, "So far and no 
farther." 



AND OTHER PUBLIC MEN OF TEXAS 89 



CHAPTER XIV. 

I did not recall what counsel represented appellees in the case 
of Lewis vs. Aylott referred to in a previous chapter until I 
chanced to see their names in the report. The leading counsel 
who actually tried the case, Major James M. Burroughs, was a 
unique character and an able lawyer. Judging by his garb and his 
manner of speech, he would have been placed as an uneducated 
backwoodsman, but he was far from it. He was utterly indiffer- 
ent to style in garments and just as careless in speech. He often 
said: "seed" and "heerd," but was in fact a man of both educa- 
tion and brains, besides of comfortable fortune. 

As trial lawyer, he was able to take care of his case against 
any man. He had practiced in the border counties of East Texas, 
where law books were not abundant, but he was bed-rocked in 
the fundamentals of law. On one occasion I chanced to meet 
Colonel Thomas M. Jack on the street after the adjournment of 
court. We passed the customary salutations and he said: "I am 
very tired. I have been fighting Jim Burroughs in the court- 
house all day, and the man who does that will need no rocker on 
his bed when night comes." 

Thomas M, Jack was the most skillful, ingenious, resourceful 
trial lawyer I ever saw. His accomplishment in that line was only 
equalled by his fairness and chivalric grace and courtesy. Major 
Burroughs was a member of Hood's Texas Brigade during the 
war of 1861-5, and when that is said all men know he was where 
the fighting was the fiercest, and he worshipped at the bier of the 
"young and storm-cradled nation that fell," with all the fervor of 
devotion of the Moslem at Mecca. 

He was never "reconstructed,." but bewailed to the day of his 
death the failure of the cause in defense of which he dared death 
and danger. It may be that my liking for him was somewhat in- 
fluenced by that fact. Republicanism, or as he termed it, "radi- 
calism" was to him a term of offense. He treated all the appoint- 
ees of the party in power with that measure of respect due the 
stations they occupied, but for being in those stations they were 
in his eyes "anathema," especially if they were Southern citizens 
when the war came on. 

The Federal Judges appointed by President Grant and other 
Presidents, and the District Attorneys, were objects of his special 
dislike. One April night there came up a very severe blow which 
rose to the dignity of a storm, and it covered with water several 
blocks of ground the Major owned between Broadway and the 
beach. I happened to be called out in that direction, and saw 
the results of the blow, and on my way back met the Major, or 
perhaps overtook him, when he was taking his usual morning 
stroll. 



90 GOVERNORS WHO HAVE BEEN 

The Federal Coui't at Brownsville was due to begin the spring 
term the next Monday, and the, Judge and District Attorney had 
to go by steamer from Galveston to Point Isabel to get to Browns- 
ville. The boat had sailed about twelve hours before the storm 
came. I said to the Major: "That was a pretty stiff blow we had 
last night, and I see it put a lot of water on your blocks on Center 
Street." "Yes," he said, "I woke up and heerd that wind a-blowin' 
and you know what I said to myself? I said 'Old (calling the name 

of the United States District Judge) and that d d carpet-bag 

district attorney started to Brownsville last night in the boat, 
and if the wind blows the boat and both of 'em to the bottom of 
the Gulf of Mexico, I am willing for it to blow all my property 
away or cover it with water, and I won't complain a bit.' " 

He was a rare old character. He has a nephew yet living in 
the sand hills of Leon County, in a small village, who was like his 
Uncle a gallant soldier in the ranks of Hood's Texas Brigade. He 
has retired from active business and professional life on account 
of his advanced age, but in the days of his professional activity, 
though he lived for a large part of the time in the woods twenty 
miles from a railroad, had no superior as a physician and surgeon 
or as a true thoroughbred gentleman in the ranks of the medical 
profession in Texas. 

My cherished recollections of friends of my early days, which 
I felt constrained to set down as a tribute justly due them, led me 
to apparently lose sight of Governor Ireland and drop him ab- 
ruptly, but I had no such intention. 

As was said a few pages back, he had the appearance and the 
reputation of being a stern, cold, dispassionate kind of a man who 
was not rtioved by or responsive to the gentle and tenderer in- 
fluences which so forcefully affect many men, but who ever 
judges him to have been so, does him injustice. He was fond of 
pleasure and congenial companionship, and to be in his company, 
in his periods of relaxation from the burden of official cares, 
was a very great pleasure. He was utterly free from affectation 
or pretense, and was a delightful companion. 

I recall that upon one occasion when he had his office on the 
ground floor of the temporary capitol, I dropped in one evening 
to pay my respects just before leaving the city for my home. He 
received me with dignity, but courteously and cordially. I de- 
clined a proffered chair, but he said: "Oh, sit down. It is rain- 
ing and blowing and disagreeable outside, and we can be com- 
fortable here by this open fire. I have nothing to do." 

I remained, and I do not recall that I ever spent a more de- 
lightful half hour. A few days before there had been a very 
worthy young white woman — a wife and perhaps a mother — as- 
saulted and murdered by four negroes in, I believe, Anderson 
County. The crime was chracterized by peculiar, indeed un- 



AND OTHER PUBLIC MEN OF TEXAS 91 

precedented brutality and atrocity, and the four negro men and a 
negro woman were quickly hanged by the horrified citizens of 
the community. 

I said to the Governor: "That was quick work on a large 
scale in Anderson County the other day." "Yes," he said, "It was 
very bad. As John Ireland, Governor of Texas, I emphatically 
condemn such action — and as John Ireland, the man, I think they 
did exactly right." No doubt in these words John Ireland ex- 
pressed the real feeling of every Governor, North or South, who 
has red corpuscles in his blood. 

John Ireland had one characteristic that more than any other 
revealed the inner man, and that was his love of little children, 
which I have heard was with him a passion, and I care not what 
a man may be apparently, or in fact, if he loves little children and 
enjoys their companionship, and finds pleasure in caressing them, 
there is in that man an inextinguishable spark of the divine. 

Among the jewels of immortal beauty, which gem so thickly 
the teachings of the divine and tender Christ, there is none 
more beautiful than His words: "Suffer little children to come 
unto me and forbid them not, for of such is the Kingdom of 
Heaven." 

During one summer while Governor Ireland was serving his 
last term as Governor, I came to Austin and brought with me 
my second son, then a little tot about 3 or 4 years old. He was a 
blonde and his hair hung in ringlets down to his shoulders. His 
skin was fair and he was becomingly dressed. I met the Gov- 
ernor on the street and we shook hands, but he at once dismissed 
me from his thoughts and said: "Kittrell, what a beautiful child," 
and stooped down and picked the little fellow up and kissed 
and caressed him and held him as close to his breast as if my 
boy had been "kindred to his blood." The act was so manifestly 
spontaneous and sincere, that it revealed what manner of man 
he was. 

He had certain habits that may appear to the "Unco Guid," and 
rigidly righteous to be wholly inconsistent and irreconcilable. He 
was the most faithful church attendant I ever saw, yet he under- 
stood the great American game, and while he did not gamble for 
money, he enjoyed the diversion of a game for small stakes. I 
had a friend who represented an East Texas County in which I 
at one time lived — in the House one or two terms. He told me 
that on one occasion a party of members, he among the number, 
were playing a quiet game when Governor (then Judge) Ireland 
entered the room. All the players began to hide cards and pocket 
chips, and in every way possible conceal what they had been 
doing. 

The man who told me the story said Judge Ireland walked in 
with that dignified carriage that he always maintained, and with 



92 GOVERNORS WHO HAVE BEEN 

a cloak or cape around his shoulders (I cannot recall that I ever 
saw him with an overcoat on) and looked like a Roman Senator, 
and that the crowd were ashamed to have him detect them. 

They did not deceive him. He said: "Keep your seats; don't 
let me disturb you. I know what you are doing. Go on with your 
game. I did not come in to play, but I will watch you a while," 
and he stood behind the player who related the story. The re- 
newed game had not proceeded far when the Judge said : "Bill, you 
don't know how to play poker. You have been losing your money 
ever since I have been standing here. Get up and give me your 
seat, and go out and walk around the block." "Bill" obeyed 
his directions, and the Judge took his seat. The player who walked 
around the block said to me: "When I got back the Judge was 
pulling in the stakes from long taw, and had me out of the 
hole." 

While I do not gamble, and hold gambling to be a very harmful, 
dangerous habit, yet John Ireland could have done many worse 
things than sit down and help a friend get back money he couldn't 
afford to lose. 

There were two places to which Judge Ireland rarely failed to 
go, and they were to church and to the theater. I chanced to be 
in Austin on one Sunday while he was Governor — indeed was 
there for several weeks. The particular Sunday to which I have 
reference was a very cold one. The streets and sidewalks were 
coated with ice, and the the mercury was unusually low. Looking 
south from the temporary capitol, as I recall, I saw but one 
person on the street and that person was the Governor. His cloak 
was drawn around his shoulders, and he was walking carefully 
to keep from falling, and was making his way to St. David's Epis- 
copal Church. Any man who ventured out on such a day to go to 
church must have felt in his heart a sincere desire to worship. 

I have no doubt that there were hundreds, if not thousands of 
church members in Austin that day who believed a card was a 
ticket to hell, but who did not go to church to do homage and 
render thanks to God for His mercies. The Governor of Texas 
did. 

I do not recall that I ever knew a more inveterate theater goer 
than was Governor Ireland. He rarely missed a performance. He 
was a man of comfortable fortune and could afford to go. I was 
told some years ago by a relative of his — a brother lawyer — that 
Governor Ireland never drew a dollar of his salary while in 
office, but drew the whole for four years when his last term 
ended. I do not know such to be the fact, but think probably 
it was. 

He was especially fond of comedies, melodramas, farces, and 
negro minstrels — any kind of a performance that furnished fun 
and relaxation. In those days I was very fond of the theater, 



AND OTHER PUBLIC MEN OF TEXAS 93 

but have attended but one in ten years. I was sitting across the 
aisle from the Governor one night when some laugh-producing 
play was on, and when a hit was made which brought down the 
house, he reached across the aisle and slapped me on the knee 
as he laughed uproariously, and said: "Kittrell, ain't that great?" 

I was instrumental once in bringing about a meeting between 
Governor Ireland and that accomplished actor, Lawrence Barrett. 
Mr. Barrett was playing a two-night engagement in Austin — the 
characters portrayed being Hamlet and Richelieu. I saw the first 
performance, but have forgotten now, which of the two plays was 
put on. I went into the Governor's office next morning. I said: 
"Governor, did you see Mr. Barrett last night?" He said: "Oh, 
no; I never go to see a tragedy played. I see enough of the 
pathos and tragedy of life here in this office. What I want is 
diversion and relaxation." I said: "You will miss a great treat 
if you fail to see Mr. Barrett and, by the way, he is upstairs in the 
Senate Chamber, and I have no doubt he would appreciate being 
permitted to call." The Governor said: "Certainly, I should be 
delighted to meet him." I had met Mr. Barrett, so I went upstairs 
and said: "Mr. Barrett, I should like to have the pleasure of 
presenting you to Governor Ireland." He seemed greatly sur- 
prised and said: "Oh, I could not think of presuming to intrude 
myself upon the Governor of Texas." I replied: "My dear sir, it 
will be neither presumption or intrusion. It will be a pleasure 
to the Governor, for he has just so said to me." Mr. Barrett was 
evidently more surprised than ever, but was manifestly gratified 
at what I had said. He considered it a most unusual honor to be 
invited to call upon the Governor of a great state, because in the 
North Governors and other public officials are by no means as 
accessible to the private citizen as they are in the South. They 
evidently up there believe more in the adage that "some divinity 
doth hedge about a king," and are disposed to keep the average 
man at a distance. 

Governor Ireland was a genuine Democrat and a gentleman, 
and Lawrence Barrett was a strikingly handsome, well bred, 
graceful man, worthy to be received by any Governor, and he 
gladly accompanied me to the Governor's office. He was re- 
ceived by the Governor with marked cordiality and very gracious 
courtesy, and the meeting was evidently a great pleasure to both. 
I felt sure the Governor would express his appreciation of the 
call by going to see Mr. Barrett play that night, and he did. I was 
curious to know what he thought of it, and asked him. His reply 
was: "Kittrell, it was the finest thing I ever saw in my life. I 
enjoyed it immensely, and I am obliged to you for advising me 
to go." 

A few years ago a brother lawyer related to me the following 
incident in the life of Governor Ireland which he related as if he 



94 GOVERNORS WHO HAVE BEEN 

knew it to be true, and as he is an honorable man, and a distant 
relative of Governor Ireland, I accepted it as true: 

He said Governor Ireland walked into the office of a lawyer 
whom he knew, and calling him by his given name, said: "How 
are you?" The lawyer replied: "Not well, Governor. I am de- 
pressed and feel badly." The Governor had a paper in his hand, 
and said: "I chanced to see in this paper that your property is 
advertised under foreclosure sale. How did that happen?" The 
lawyer said: "It was a purchase money debt, and business had 
been bad, and he was simply unable to meet his payments. Gov- 
ernor Ireland said: "Why didn't you let me know? I might have 
been able to help you." The lawyer replied: "Why, Governor, 
you were under no obligation to me. I had no earthly reason for 
asking you to pay my debts, and besides when you were a candi- 
date for Congress against Colonel Schleicher I took the stump 
against you." The Governor said: "Well, you had the right to do 
that. This is a free country, and Schleicher was an able man, and 
you had the right to help elect him. How much do you owe? 
What will it take to pay the debt?" The debtor named a very 
considerable sum as the sale was of his home. Governor Ireland 
turned and walked out, but returned in a few minutes and handed 
the despairing debtor a check to cover the full amount of the 
debt, interests and costs, saying as he did so: "Take this, and if 
you can pay it back, do so. If not, your home is saved." and 
quietly withdrew. 

He may have been "cold," as his enemies said he was, but the 
man who did what John Ireland did for an unfortunate fellow- 
man, is such a man as is rare, and the world sorely needs more 
"cold" men. 



AND OTHER PUBLIC MEN OF TEXAS 95 



CHAPTER XV. 

Governor Ireland held the office of Governor during the years 
1883-4-5-6, and he was followed by Lawrence Sullivan Ross, "the 
Little Cavalryman," who was nominated at Galveston in the sum- 
mer of 1880. As I now recall, he and D. C. Giddings of Brenham 
and Marion Martin of Corsicana were the candidates for the guber- 
natorial nomination. Colonel Giddings was a successful business 
man; had twice been a member of Congress, and would have 
made an excellent Governor, but no man could have defeated 
"Sul" Ross in that convention. 

No man was worthier to have been Governor of Texas than was 
Colonel Giddings, who was called by his intimate friends "Clint." 
He was, as I have heard, in early life a conductor on the railroad 
running from Hempstead to Brenham, when Brenham was the 
teminus of what is now the Austin branch of the H. & T. C. R. R. 

He later read law and became a partner in the practice of his 
elder brother. Colonel J. D. Giddings, who was for many years 
a successful practitioner at the bar of Brenham, a town that has 
furnished the bar of Texas with as many lawyers who rose to pro- 
fessional and official distinction, as has any town in the State of 
its population, and more than many larger towns can boast of. 

Colonel Giddings, I think, raised and commanded a regiment in 
the Confederate Army, and after the war, his brother and himself 
entered into the banking business at Brenham in the firm name of 
Giddings & Giddings. The bank was opened in 1866, as I recall, 
and under the management of the son of Colonel D. C. Giddings, 
is yet a stable and prosperous institution. The son, who is a most 
efficient and useful citizen, has proven worthy of his noble sire. 

There came into Texas in reconstruction days a man from the 
North — a typical carpet-bagger. He had been, I think, a briga- 
dier general in the Northern army, and saw in the then condition 
of Texas what appeared to him to be a most excellent opportunity 
to indulge in (as the Pilgrim fathers said when they plundered 
the Indians) "much gayneful pillage." 

In, I believe, 1869, when E. J. Davis was elected Governor, the 
carpet-bagger was elected to Congress by the negro vote, to which 
he catered, and his affiliation was almost wholly with the mem- 
bers of that race. He, of course, abused the South and the Demo- 
cratic party and mocked at the misery of the people he and his 
fellow carpet-baggers were plundering. 

His name was William T. Clark. He was rather a good looking 
man and a stylish dresser, and his dudish appearance won for 
him the sobriquet of "Tomtit Clark." I heard him ranting before 
a crowd of negroes who howled with approval whenever he abused 
the South and the Democratic party. 

As I think of it all now, I am reminded of the famous retort 



96 GOVERNORS WHO HAVE BEEN 

made, I believe, by L. Q. C. Lamar to some Northern Senator who 
was pouring out the vials of his partisan wrath on the head of 
Jefferson Davis, "whose shoe's latchet" the traducer "was not 
worthy to unloose." Senator Lamar said: "When Prometheus 
was chained to the cold rocks of Mount Caucasus it was a vulture 
and not an eagle which preyed upon his vitals." 

In 1871 "Tomtit" Clark came back to Texas and ran for Con- 
gress again, and Colonel Giddings was the Democratic candidate. 

It may have been that the election was for the state at large. I 
am not sure, but in any event, the territory to be covered was of 
immense area. Colonel Gidding§ covered it. The officials vested 
with the function of returning officers were, of course, Repub- 
licans, most likely carpet-baggers or scallawags, who were worse, 
if possible, and they gave "Tomtit" the certificate of election. 

Colonel Giddings promptly filed notice of contest, and with 
unflagging energy and at great expense, all borne by himself, got 
up the testimony to be presented to the Committee on Contested 
Elections of an overwhelming Republican Congress. 

The Committee reported unanimously in Colonel Giddings' favor, 
and so overwhelmingly did he prove that he had received a major- 
ity of the votes amounting to thousands, that, marvelous to relate 
every vote in Congress was cast to adopt the report, save one, and 
that was cast by William "Tomtit" Clark. The fraud of the re- 
turning officers was made so manifest that a rankly radical Con- 
gress gave an ex-Confederate Colonel, who was a Democrat, his 
seat — the only decent act ever performed by it, where Southern 
interests were concerned, so far as my recollection extends. Colo- 
nel Giddings was elected to Congress again in 1876, the year 
Samuel J. Tilden was elected, but as everybody knows, the will of 
the people was thwarted, and the office stolen by the same kind 
of returning board that tried to steal the election from Colonel 
Giddings. No man ever performed a greater service for Texas 
and the Democratic party and the cause of honest elections, than 
did Dewitt Clinton Giddings when he, single-handed, defeated the 
efforts of a lot of corrupt partisan officials to debauch an election 
in Texas, and when he drove a conscienceless obtruder into the 
obscurity he so fitly adorns. Colonel Giddings passed away a few 
years ago at his home in Brenham, and above his honored dust 
rests the soil of his beloved state, whose faithful and fearless 
adopted son he was. 

As I recall, wholly from memory, the vote for Governor Ross 
in the first ballot was 406, which made it evident that opposition 
was useless. It was at that convention that the public career of 
J. S. Hogg as related to the whole state began. He was nominated 
for Attorney General, thanks to the fidelity and devotion of as 
steadfast and enthusiastic a bodv of followers as ever stood be- 



AND OTHER PUBLIC MEN OF TEXAS 97 

hind a candidate. I trust to be able later to do justice to him and 
his remarkable career and valuable services to Texas. 

Governor Ross polled 228,776 votes, defeating his Republican 
opponent three and one-half to one. I recall no gubernatorial ad- 
ministration in Texas that was so free from friction, or that was 
so little subjected to criticism as was that of Governor Ross. He 
had been sheriff, member of the constitutional convention of 
1875 and later a member of the Senate, but was not as widely 
known as have been some candidates before, or so well. He was 
a man of culture and courage, and of an order of integrity so 
high, that even suspicion of infidelity concerning him was im- 
possible. He had the commendable ambition to be Governor of 
the State in which he had lived since he was an infant at his 
mother's breast. He had fought Indians on her border e're he 
had attained his manhood, and had, as a commander in the 
Confederate Army, participated in 127 battles, big and littie, before 
he was 27 years old, at which age he was a Brigadier General. He 
had no special fondness for politics, and after his first term of 
service as Senator, declined to run again, 

The nominating convention met at Hillsboro, I think, and after 
several days of political battle neither of the two candidates could 
get the necessary two-thirds vote, so the convention nominated 
him and adjourned. 

I happened to meet him shortly afterwards and said: "Well, 
General, they drafted you." "Yes," he said. "I am sorry they 
did. If I had known of it before the convention adjourned, I 
would not have accepted, but after it had adjourned, I could not 
afford to force another convention on the district by declining 
the nomination, so I was obliged to accept." 

My recollection is that when Governor Ross was in the Senate 
the last time the sessions were held in a hall over the drug store 
now at the corner of Ninth Street and Congress Avenue, while the 
House held its sessions in the Millet Opera House, now the Millet 
Mansion. That was a very strong Senate. That can be said of any 
Senate that contained such men as L. S. Ross, A. W. Terrell, and 
Charles Stewart of Harris County, who was for ten years a 
member of Congress from Texas — a man big of body and brain, 
and of high character. 

Some who read this may not know that there was a negro 
Senator in that body — a genuine black negro. His name was 
Burton, and he was from Fort Bend County, and in reconstruc- 
tion times was sheriff of that county. He was a respectful, re- 
spectable, sensible honest man, and his conduct and bearing as 
a member of the Senate so commended him to his fellow mem- 
bers that a number of them, perhaps all, joined in presenting him 
with a handsome ebony walking stick, gold mounted. That was 
seventeen years after the close of the Civil War, yet a negro was 



98 GOVERNORS WHO HAVE BEEN 

representing a senatorial district in Texas where the Democratic 
vote of the whole state was 4 to 1 as compared with the Re- 
publican. 

Seventeen years later I saw a white Democrat of an old and 
most excellent Texas family, a young man of ability, give up his 
seat in the House to a negro, pursuant to the report of the Com- 
mittee on Contested Elections of a Texas Legislature, yet it is 
preached in the North that we roast negroes here to make a 
Southern holiday. I have heard that Senator Burton owned a 
plantation, or at least a large farm, and possessed a comfortable 
fortune. I have heard the statement made, and have never 
heard it contradicted, that his old mistress in Mississippi was 
greatly impoverished by the war and that up to the time of her 
death he sent her $50 a month and erected a monument over 
her grave, and that when his young mistress married he sent her 
a thousand dollars as a wedding present. If this statement is 
true, even in part, the gift of his brother Senators was worthily 
bestowed. 

When speaking of "public men in Texas" his name might not 
be suggested, but he was in public station pursuant to lawful 
proceedings, and having proved himself morally worthy, he is 
entitled to recognition. 

Governor Ross was as efficient and successful as President of 
the A. and M. College as he had been as Governor. He was one 
of those plain, simple, unpretentious, yet forceful and efficient 
men, who arrived at every goal he set for himself, and measured 
up to the demands of every situation. Just after the announce- 
ment of his election to the presidency of the A. and M. I met a 
drummer friend who traveled in East Texas territory. I was 
raised in large part in East Texas and am a great believer in 
that section of the State. I asked my friend what the news was 
in my old territory. He said: "All I heard was fixing up to 
send boys to the A. and M. I'll swear I believe every man that 
was a soldier under Governor Ross is going to send his son to 
school under him. They said 'Little Sul' is running the A. and M. 
now and we know where to send our boys. We know him be- 
cause we followed him for four years." They were right, for 
neither they nor any other man ever followed a gamer or more 
gallant leader. He always led. He said, "boys, come on." He 
never said "go on." His habits of fighting time stayed with him. 
About two years before his death, I was invited to deliver the 
Commencement address at the college. My wife and I were his 
guests. He had a large room upstairs known as his room, but 
which he rarely occupied in summer. He apologized for being 
compelled to assign my wife and me to a small (but entirely 
comfortable) room on account of the number of his guests. He 
said: "I sleep out here on the gallery. I have slept on the 



AND OTHER PUBLIC MEN OF TEXAS 99 

pairie and in the woods so much that the inside of the house is 
too cramped and confining for me. You will find a box of cigars 
on the table in there — help yourself. I rarely touch them. I keep 
a sack of tobacco and a supply of shucks and stick to cigarettes." 
He caught the cold which ended his life on a hunting trip. In 
his passing, Texas sustained an almost irreparable loss. He loved 
his tent, and the winds, and the running waters here, and it is 
comforting to believe that the tent of the heroic soldier is pitched 
now on the banks of the river of life, by which blossonc and 
bloom the trees of Paradise. 



100 GOVERNORS WHO HAVE BEEN 



CHAPTER XVI. 

The nomination of James S. Hogg in 1890 was predestined 
before the campaign began. As well as I can recollect, the only 
opponent who took the stump against him or offered for the 
nomination, was Gustave Cook of Harris County, at that time 
Judge of the Criminal District Court of Harris and Galveston 
Counties, but his candidacy was of no avail, nor would that 
of any other man have been. 

The Bard of Avon said 300 years ago that "there is a tide in 
the affairs of men which, taken at the flood, leads on to fortune," 
and the saying is as true now as it was when Shakespeare wrote 
it down, and James S. Hogg illustrated its truth most forcefully. 

There were many who believed that he was merely an ordinary 
politician, who designedly stirred up prejudice against the rail- 
roads in order to win votes and ride into office. I may have 
thought so myself, but I was on the Bench and took no part in poli- 
tics. Looking back upon the condition and events of thirty years 
ago, I do not believe the charge was true. In the first place, James 
S. Hogg was not an ordinary politician, nor an ordinary man in 
any way. 

I say this with entire sincerity, though I never voted for his 
nomination, and though our personal relations at one time became 
very much strained, it might be said, hostile, I have never been 
able, and never desired to be able to keep alive resentment, or 
cherish malice or ill will. 

The railroads of Texas had unquestionably done much to 
arouse public sentiment. There was practically no restraint in 
the matter of issuance of stocks and bonds, and they indulged, 
perhaps from necessity, resulting from fierce competition, in 
ruinously unjust discrimination in freight charges, and the very 
best interests of the state, indeed its good name, demanded cor- 
rection of such evils. 

As Attorney General, Governor Hogg, as I recall, sought relief 
for the people through the courts, but the result of his efforts 
was not such as was satisfactory to him, and he therefore de- 
termined to carry the fight to the people. He had been reared 
in poverty, and had mixed much with the plain people, and be- 
lieved in them. I have no doubt that he believed that as the 
champion of the people against the railroads he could win the 
Governorship, and that was a very commendable and laudable 
ambition, and to make the attempt along those lines was entirely 
legitimate politics. I believe, too, that he had a higher and more 
unselfish purpose than merely obtaining an office — that he had 
wrought out in his mind certain plans and policies which he 
believed if put into execution, would correct existing conditions^ 



AND OTHER PUBLIC MEN OF TEXAS 101 

and regulate railroad management in such way as would be best 
for the people and for the roads. 

The object of his deepest interest and most persistent purpose 
was a railroad commission, and he believed, as I understood, 
that such a body could be created under the Constitution as it 
then existed, but the consensus of opinion of the ablest lawyers 
in the Legislature was that a constitutional amendment would be 
necessary. I recall that L. A. Abercrombie of Huntsville, who 
was elected Senator in 1886, and consequently held over until 
1890, favored a railroad commission, but believed it could not 
be lawfully created until the constitution was amended; and he 
was one of the best lawyers ever in that, or any other Texas 
Senate, and I believe, but am not sure, that he drafted the amend- 
ment. 

The commission came in due time, as did the stock and bond 
law and other constructive and salutary legislation which Gov- 
ernor Hogg advocated, and when he left office in January, 1895, 
he had the satisfaction of kno^ying that the fight he began four, 
yes, six years before, had been won. No ordinary man would 
have ever worked out such a plan — certainly would not have 
carried it into full fruition. 

National and State history teach us that it has ever been that 
when conditions reach a state of emergency and peril, out of 
the very stress and strain of the siuation there is always evolved 
some man who was destined to correct the evils which threaten 
the welfare of the people. Samuel J. Tilden, single-handed, ex- 
cept for the aid of Thomas Nast, the cartoonist, crushed into 
powder the most corrupt and most powerful municipal ring of 
thieves and public plunderers that ever cursed a great city. 

Grover Cleveland cleaned out the festering corruption in mu- 
nicipal government in Buffalo, and at the expense of his defeat 
for the Presidency, denounced the Senate Tariff bill of 1888 as an 
"act of national perfidy and dishonor," and the people made him 
President again in 1892. 

James S. Hogg did not have to deal with a case of moral cor- 
ruption. The railroads exercised powers which they had at 
least the legal right to exercise, because there was no law to pre- 
vent what they did. The credit of the State must have been 
irreparably injured if counties were not restrained and bond 
issues regulated, and Governor Hogg argued that law and morals 
should go hand in hand. I have said that his relations and mine 
became strained. The estrangement arose during the campaign 
in 1892 between him and Hon, George Clark. On the Clark ticket 
was an uncle of mine whom I loved better than any man on 
earth, and I took up the cudgel for him in resenting remarks 
made about him by Governor Hogg; but with me all bitterness 
ended with the end of the campaign. I feel that much must be 



102 GOVERNORS WHO HAVE BEEN 

pardoned in a man when he was fighting as he believed, not only 
in defense of cherished ideals and policies, but for his very 
political life. I never felt or expressed any doubt of his integ- 
rity of purpose or action. 

He left the impress of his constructive statesmanship upon the 
Statutes of Texas, and he will be remembered for his virtues long 
after his faults are forgotten. That he rendered the people of 
Texas much needed and most valuable service there is no doubt, 
and it is very gratifying to know that there has come, as the fruit 
and planning and foresight, wealth and comfort to his very 
worthy and deserving children. 

The morning his death was announced the president and man- 
aging head of the Houston Chronicle sent a request to me at the 
courthouse, while I was on the Bench, asking me to prepare an 
editorial tribute. It had, necessarily, to be very brief, because 
the editorial page was ready to go to press, and was being held 
for the tribute. 

I wrote it as fast as my pencil could fly over the paper, and it 
gave me very great satisfaction to be told a few days later by 
one of Governor Hogg's law partners, Frank C. Jones, Sr., who 
was, and is, a very highly esteemed friend of mine, that of all 
the newspaper tributes paid their father, my brief one gave 
to his family the most satisfaction. There was not a word in the 
few lines I wrote that was not true; and that I did not feel. 

The campaign of 1892 between Governor Hogg and Judge Clark 
for strenuousness, vigor and bitterness, will long remain the 
standard. It was as lamentable as it was unnecessary, but it 
cleared the political atmosphere, gave each faction more respect 
for the other, and when peace was declared, the party was 
stronger than ever. Such conflicts, even between candidates of 
different parties, are to be regretted, and when they arise be- 
tween men of the same party, they are tragically deplorable. 

Every man in Texas knew then as well as he knows now, that 
George Clark was an honest man, a gentleman and a patriot, yet 
he was charged with being in the pay of the railroads, and the 
the representative of capitalists who wanted to exploit Texas, 
and many other kindred charges were made against him, for no 
other reason than that he differed from his opponent as to what 
financial, industrial and economical policies were best for Texas, 
but in that mad hour of passion men ceased to reason. 

I was on the Bench at the time, but I favored Judge Clark's elec- 
tion. I never yet saw any kind of a political situation that would 
cause me as between two men of my own party, to vote against 
my personal friend. 

Friendship with me is a sacred creed. When I come to stand 
before the bar of final judgment I doubt not that the catalogue 
of my offenses will be long and large, but I do not believe there 



AND OTHER PUBLIC MEN OF TEXAS 103 

will be found there even one time the charge that I ever failed 
a friend or forgot a favor. I do not believe my "dearest foe" 
will charge that against me. 

George Clark was my personal friend. His father and my 
father were friends, and lived in the same county in Alabama, 
and he and I were born in the same county, though he was quite 
a number of years my senior. He was a gallant soldier in the 
Army of the Confederacy and fell wounded in the midst of the 
fiercest fighting in front of the Confederate Capital. 

He was a lawyer of the very first order of ability. The "Old 
Alcalde" knew a lawyer when he saw him, and he made him a 
Judge of the Court of Criminal Appeals, and he left behind him 
in the records of that court opinions that will be to the bar and 
bench, unerring guides to legal truth when his bones are dust. 
He was equally at home in the field of the criminal and the civil 
law and was the peer of the ablest in either sphere. That can 
be said of comparatively few lawyers. At least such is my ex- 
perience. Judge Clark and Major W. M. Walton and A. W. Ter- 
rell and Leonard A. Abercrombie of Huntsville and W. L. Craw- 
ford of Dallas, are among the few names I can recall offhand, 
of men who were able and skillful in both lines of the profession. 
Judge Clark's profound knowledge of the principles of criminal 
law was best displayed on the bench where he put his conclu- 
sions into shape in faultless English, and sustained them by un- 
answerable reasoning. Unless my memory plays me false, he 
served under Governor Coke for a brief time as Secretary of 
State, rather as a matter of accommodation to the Governor than 
from any desire to hold the place. Later he was made Attorney 
General by Governor Coke — a place for which he was admirably 
fitted. 

Judge Clark's father was a lawyer and for many years was 
Chancellor in one of the districts in Alabama where the juris- 
diction of the court was purely equitable. He was a plain, solid, 
able equity lawyer, without any frills or furbelows. 

Judge Wm. P. Chilton of Montgomery who was for twelve 
years Chief Justice of the Supreme Court of Alabama, once ap- 
peared before Chancellor Clark to argue an important case. 
They were warm personal friends. Judge Chilton was a great 
uncle of Hon. Horace Chilton, if the genealogical record in my 
memory is correct, and was a cultured, scholarly man. In 
the course of his argviment he s,aid : "May it please your Honor, 
at this point I feel I can appropriately quote from that great 
poet, John Milton." However so able a lawyer and cultured a 
man as was Judge Chilton, could weave any part of Milton's im- 
mortal epic into an argument in chancery is difficult to under- 
stand, and it seems the old Chancellor had doubts about it, for 
he at once said: "Never mind, Judge, about those hethen 



104 GOVERNORS WHO HAVE BEEN 

(heathen) poets, just stick to the law and the facts." Judge 
Chilton "stuck" thenceforth. 

It came to pass after Governor Hogg became a member of the 
bar at Houston that I was called upon to try a case in which he 
was made defendant. The action was in the nature of one to 
impress a trust upon certain lands in favor of the plaintiff — or 
in the alternative to recover damages in a large amount. 

The original petition set the damages at, I believe, $3,000,000, 
but as the land lay near Beaumont and was, of course, supposed 
to be underlaid with rivers of oil, a lawyer who at that time 
dropped the figures in his allegation of damages below a million, 
was ridiculed as a "piker." 

There were, of course, allegations of fraud and deception 
made against Governor Hogg, and the case was one of that 
character where one tale was good until the other was told, and 
the very respectable and capable counsel who filed the suit 
were entirely justified in doing so, on the faith of their client's 
version of the dealings between him and Governor Hogg. One 
of the ablest lawyers ever at the bar of Texas, who was a political 
and personal friend of Governor Hogg, was employed before the 
case came to trial, and he revised the pleadings and reduced the 
amount of damages asked to $66,000. Governor Hogg appeared 
for himself, but supported by q.uite an array of able lawyers. 

It took nine days to try the case, and the result was a verdict 
for defendant, as it should have been. While I believe the plain- 
tiff honestly thought he had been defrauded, he was not an 
educated man nor overly bright, and Governor Hogg had not 
only not defrauded him, but had tried to befriend him, and when 
the facts were fully sifted out and the truth revealed, not even 
the faintest odor of fraud attached to Governor Hogg's action. 

I recall that the charge was a very difficult one to write, as 
the issues as plead were complicated, and I expected a motion 
for a new trial to be filed, alleging error in every paragraph of 
the charge. When the time for filing motion was about to expire, 
I asked the counsel who had been called into the case, if he was 
going to file a motion for a new trial. He replied promptly and 
with decided emphasis: *T am not. My case has been submitted 
under a charge to which there could be no objection, twelve men 
have found against me, and I am done." There is no truer or 
safer test of legal ability than the capacity to know when not 
to appeal, especially on the part of the plaintiff. A lawyer gen- 
erally knows when not to appeal. The mere attorney never knows 
until the appellate court points out why he had no case, or no 
ground of appeal. 

After the case was over some friend asked me if I heard what 
Governor Hogg said about me in the course of his argument. I 
replied I did not. It seems he said in effect, that the court was 



AND OTHER PUBLIC MEN OF TEXAS 105 

personally unfriendly to him, and he had to look to the jury 
for justice. The case was tried before the statute passed as a con- 
cession to judicial stupidity was enacted, requiring the charge to 
be delivered before the argument, but not till court and counsel 
have wrangled over every paragraph. 

My attention was absorbed in writing the charge, and I did not 
hear what Governor Hogg said, but even if I had, I likely would 
neither have fined him nor reprimanded him, but would have par- 
doned the remark to his natural zeal in defending himself against 
charges involving his honor. 

Besides, since I did not cherish the slightest personal ill will 
against him, and I was conscious that in the fear of God I was try- 
ing to "execute justice and maintain truth," I could have afforded 
to, and would have ignored the statement had I heard it. Had I 
been his bitter foe, the only way I was likely to have been in- 
fluenced as regarded him, was that I might, out of fear of lean- 
ing against him, have unconsciously leaned toward him. He 
won, as he ought to have done, and I was, and am glad he did. 



106 GOVERNORS WHO HAVE BEEN 



CHAPTER XVn. 

I stated a few pages back that the only opponent who offered for 
the nomination for Governor against Governor Hogg in 1890 was 
Gustave Cook of Harris County, and any story of the public men of 
Texas which did not include Gustave Cook would be like the 
tragedy of Hamlet with the melancholy Dane omitted from the 
cast. He was strictly sui generis. He had neither precedent or 
model. He was a bundle of inconsistencies and contradictions, 
but nevertheless through his mental and moral makeup there ran 
a thread of pure gold. 

He joined the famous regiment, the fighting Paladins of Ben- 
jamin Franklin Terry, which came to be known as Terry's Ran- 
gers, and when the war closed, was, as I recollect, its Colonel. 
He said to me once: "I never could understand why it was 
that I couldn't go through a battle without getting in the way of 

a Yankee bullet. I was no braver than anybody else, but d d 

if they didn't hit me every time I went in. When we got to Ben- 
tonville. North Carolina, with Joe Johnston, we didn't know 
General Lee had surrendered, so we lit into the first bunch of 
Yankees we saw, and they shot me pretty near through, and fif- 
teen years afterwards I had to have the bullet cut out from under 
my shoulder blade." He was an authority on race horses, their 
blood and ancestry and pedigrees, yet never bet a dollar. 

He was an earnest, eloquent anti-prohibitionist, but never took 
a drink. He swore like "our army in Flanders," perfectly uncon- 
scious that he was doing so, ypt he believed profoundly in the 
fundamentals of the Christian faith, and was able to, and did, on 
the platform, defend it with persuasive logic and thrilling elo- 
quence. 

On the bench he was in one moment the very impersonation 
of judicial dignity and sternness, the next moment would let out 
some original remark that would bring a smile to the face of a 
mummy. 

His heart was tender, his friendship strong, yet I have seen 
him try a murder case in which the defendant was bound to him 
by ties as close as was possible not to be within the prohibited 
degrees, and he never leaned or wavered the millionth of a mental 
inch from the perpendicular of judicial impartiality. 

He was elected to the Legislature in Harris County in 1872 
and had for an opponent a negro named Dick Allen. I said: 
"Colonel, you will have to observe the courtesy established by 
long custom and vote for your opponent." He said: "I'll be 

d d if I do. I have been telling these people that no 'nigger* 

had any business in the Legislature, and I am not going to stultify 
myself to conform to any kind of custom. I am going to vote 
for Gus Cook." 



AND OTHER PUBLIC MEN OF TEXAS 107 

His colleague, elected at the same time, was Dr. Ehrich F. 
Schmidt, a German druggist, and most estimable man. Both men 
were in the heyday and prime of a splendid manhood, and I 
recall them as the two handsomest men I have ever seen in my 
life, one a brunette, the other a blonde. 

Judge Cook was for many years Judge of the Criminal District 
Court of Harris and Galveston Counties, and I several times ex- 
changed with him. He said, "I like to go to the country where 
I can eat hen aigs and swap lies with the boys." He could con- 
dense the law of any kind of a criminal case correctly into briefer 
compass than any man I ever knew. He was as honest and as 
fearless as Saul of Tarsus. 

The popular clamor had no more effect upon him than did the 
sighing of the winds. He was genial and courteous to everybody, 
but toadied to no man. The rich man was no more in his sight 
than his poorer neighbor, if the latter was worthy of respect. 
He was going to court one morning and a man stopped him who 
was rich and by reason of that fact, was somewhat of a king 
among his kind, which kind was not of Judge Cook's class. The 
man said: "Judge Cook, the people of this county are getting 
mighty tired of the way the Criminal Court is run. There are 
too many continuances and too much expense." The Judge said: 
"Is that so? And they have sent you to tell me about it as I un- 
derstand." "Yes, sir," the man said, "and I have done it." The 
Judge looked at him for a moment with an expression of con- 
temptuous scorn and said: "Well, you tell the people for me 
that the next time they send anybody to tell me how to conduct 

my court, to send a gentleman and not a d d pot-bellied scrub 

like you are." 

The messenger grew wrathy at once, and said: "You can't 
talk to me that way, sir; I won't stand it." The Judge said: "Now 

you are a d d liar, for I have already talked to you that way, 

and you have stood it, and are going to stand it," whereupon he 
coolly strolled off down the street, leaving the messenger of the 
people boiling with wrath, but with prudence enough to say no 
more. 

He could do things in the court house at one time that would 
touch the deepest emotions, and the next time violate all prece- 
dents. 

I chanced to be in the criminal court room at Galveston one day 
when he was passing sentence on a negro youth who had been con- 
victed of theft. He said : "I am ashamed to see you here. On the 
wall of my home there is a picture of your mammy with two 
of my children in her lap, and God never made a better woman 
than she was. She raised you right, and I am glad she is dead 
so she will not see you where you are now. Here, Mr. Sheriff, 
take this money and buy this boy such knick-knacks or comforts 



108 GOVERNORS WHO HAVE BEEN 

as he may need," at the same time putting a lot of money in the 
sheriff's hands. 

At a term of the court in Houston the District Attorney who 
always read or recited an indictment with much impressment got 
down to the charging part of one, and it revealed that the de- 
fendant was accused of stealing a watermelon. The Judge said: 
"Mr. District Attorney, where is the defendant?" "He is sitting 
there just in front of your honor's stand." The Judge leaned 
slightly over, but the heavy cornice and carving of the elaborate 
Judge's stand concealed the defendant from his view, until he 
pressed his corpulent form against the inner edge and leaned 
further, when he saw a little woolly headed negro boy about 10 
or 12 years old. Raising up, he said: "Tut, tut, Mr. District At- 
torney, this won't do. You are trespassing upon the constitu- 
tional rights of a citizen. Any 'nigger' boy of that age has the 
constitutional right to steal a watermelon and it ain't right to 
worry the court with it. Gentlemen, return a verdict of not 
guilty." And they did. 

In every city there are always to be found among the legal 
habitues of the criminal court room some very shady "shysters." 
One day the District Attorney was endeavoring to identfy a lot 
of gold rings and chains found in the possession of the defend- 
ant, whose counsel were handling the part of the jewelry lying 
on the counsel table. The Judge called the sheriff to him, and 
bending his lips close to the officer's ear, said: "Watch that 
jewelry. It is in more daijger now than it ever was before." 

I saw him tested once as few judges have been tested. It was 
when I had not practiced law long, assisting, if what I did could 
be called assistance, an older and very able lawyer defend the 
brother of a friend of mine for alleged murder. The District 
Attorney, though always fair, was very strong, and the private 
prosecution was very vigorous. 

The deceased, while he was a printer at the case, as was the 
defendant, had relatives of high social and professional standing, 
and the issue was doubtful. There was but one objection re- 
ferred to the Judge during the trial and he resolved that against 
the defendant, and if there was any leaning or bias at all in his 
admirable charge, it was in favor of the State. 

After the jury had retired I walked up to the Judge's stand, 
and he said: "Norman, this has been one hell of a case." 
Much astounded, I said: "Why Judge, I never saw a case more 
smoothly tried. We have had no contention over any question." 
"Oh," he said, "I don't mean what I say in that way. I wouldn't 
have cared anything about that, but I raised that boy sitting 
there," pointing to the defendant. "His mother's yard and mine 
joined in Richmond. He played with my children. He ate at 
my table, he slept on my beds, he sat on my knee, and no man 



AND OTHER PUBLIC MEN OF TEXAS 109 



ought to be compelled to go through the ordeal I have gone 
through." 

Under those circumstances no man connected with the trial 
even suspected that he had ever seen the defendant before in his 
life. No Judge could ever have been more absolutely impartial, 
though, as I discovered a few minutes later, his heart was full, 
almost to bursting. 

I said: "Judge, let's walk down to the corner and get some 
lunch." He agreed. Before we had gone very far a deputy sher- 
iff overtook us, and said the Judge was needed in the court 
room as the jury had reached a verdict. We returned and he 
took his seat and asked the jury if they had reached a verdict. 
The foreman said: "We have, sir." The verdict was one of ac- 
quittal. The Judge said: "Gentlemen of the jury, you are dis- 
charged with the thanks of the court. You have proven that you 
intend to uphold the law and administer justice in this com- 
munity," and at once left the bench and walked rapidly to the 
door of the court room. Tears were rolling down his cheecks, 
and as he drew near to the District Attorney, who had started out 
of the room ahead of him, he cried out in a voice broken almost 
into sobs, "Frank, by g — d, they cleared him." 

I asked him later what he would have done had the verdict 
been one of conviction. His answer was prompt and em- 
phatic. "I would have given him a new trial in fifteen min- 
utes." The verdict was right. I have had many jurors be- 
fore me in murder cases, but so far as I recall, I never have 
seen any jury which, taken all in all, was composed of twelve men 
of as high character and as superior in order of intelligence as 
were those who tried that case. The defendant himself was but 
little if any happier than was the Judge. Only a man who has 
a heart, and has been placed in such a position can appreciate 
how trying an ordeal "Gus" Cook endured that day. 

In that very court room where his emotions moved others to 
tears, he had laid before him one day an application for con- 
tinuance in a case. The attorney was generally reputed to keep 
a supply on hand to meet most any emergency. The Judge 
turned page after page until he reached about the tenth, when 
he folded up the motion and said: "Mr. Clerk, enter a contin- 
uance. It will take the rest of the term to read this motion." 

He had the faculty in conversation or on the platform of blend- 
ing the comic and the serious, or putting them into that juxtapo- 
sition which creates humor. I heard him in the course of an ad- 
dress at a gathering of Confederate veterans one day pay a trib- 
ute to Jefferson Davis which, in point of chaste oratorical beauty, 
no man could have excelled. There was a sentence in it that I 
felt that it was impossible that it could have been the fruit of im- 
pulse or sudden inspiration, put forth "impromptu," and T asked 



110 GOVERNORS WHO HAVE BEEN 

him about it. He said: "Why, I laid on the floor and groaned 
like a woman in travail shaping that sentence to suit me," and 
I am sure he told the truth. It was worth the toil, yet it sounded 
as if it came forth spontaneously, fresh-coined from the mint of 
his wonderful mind. 

He sometimes, as a courtesy, or to help some deserving charity, 
delivered a lecture on the theme, "Simon — Sometimes Called 
Peter." I do not believe he ever delivered it for pay, because he 
cared no more about money, or knew no more how to make it, 
or take care of it, than did an infant in arms. The lecture was 
a marvel of humor and seriousness, fun and solemnity. I re- 
member he said : "And Peter's wife's mother lay sick of a fever 
but she rose and ministered unto them. If one of these modern 
day of mothers-in-law had been Peter's mother-in-law she would 
have had Peter making a fire and fixing the coffee, and skin- 
ning around the back yard over chunks of wood and wheel- 
barrows and old stove legs trying to catch a yellow-legged 
chicken. The word 'Peter,' you know, comes from the Greek 
Petron, a stone, and in French, it is Pierre, so when you work 
it out to the end we are led to the conclusion that Peter was 'a 
brick.' " Immediately after such quaint conceptions as those 
quoted, he would rise to heights of eloquence that stirred and 
thrilled. 

When the I. & G. N. Railway was first built a very wealthy man 
in New York was a large stockholder in it, perhaps was its presi- 
dent — a station on it is named for him. He was a very religious 
man, and a liberal philanthropist. Outwardly at least, he car- 
ried his religion into his railroad business, by having framed and 
hung in the stations along the line, scripture texts. The road was 
begun before the reconstruction period was over, and the carpet- 
baggers were robbing the South, unrestrained. In one of the 
depots the text was, "Thy gold and thy silver are mine." It 

caught Judge Cook's eye at once and he said: "You are d d 

near right. You have got most all we had, and are getting the 
balance." 

It should not be inferred from what I have said about Gustave 
Cook that he was gifted with eloquence, wit and humor, but not 
dowered with a sustained power of reasoning, for such infer- 
ence would be most erroneous. 

He was capable of 'presenting a legal argument in a civil case, 
with great force and clearness, for in addition to being thoroughly 
grounded in the principles of law, he had an unusual command 
of language, and clothed his ideas in faultless English, and could 
embellish an argument with metaphor and pointed illustration, 
without lessening its strength. He made before me on one oc- 
casion, one of the most clear-cut and forcible arguments on the 



AND OTHER PUBLIC MEN OF TEXAS 111 

constitutionality of a statute relating to contested elections I 
ever heard. 

Able lawyer, just and brave judge, chivalrous, gallant soldier, 
genial companion, faithful friend, tender and devoted father^ 
may his rest be peace in the bosom of the State he loved so deeply 
and served so faithfully. 



112 GOVERNORS WHO HAVE BEEN 



CHAPTER XVHI. 

In 1894 there was a very spirited contest for the Democratic 
nomination for Governor. John H. Reagan, S. W. T. Lanhara and 
Chas. A. Culberson were, as I recall, the contenders for the prize. 
The convention met in Dallas, and Judge Reagan and Attorney 
General Culberson were the leading candidates. On personal 
grounds, which are very persuasive with me, my sympathies 
were with Colonel Lanham, though I had sincere admiration for 
the brilliancy and solid ability of Mr. Culberson, and profound 
reverence and respect for Judge Reagan, than whom no state 
ever had a more capable or more faithful public servant. He 
was, I think, twice district judge, and I believe was twice elected 
to Congress, One of his contests was with Lemuel Dale Evans 
and I have heard it was very heated, and that the race was very 
close. 

I know Judge Reagan was in Congress in 1860, because my 
father visited Washington that year, and I have heard him re- 
peat what Judge Reagan told him about the dangerous tension 
which political feeling had reached between Northern and South- 
ern Congressmen. Judge Reagan said personal conflicts were 
imminent all the time, and said to my father: "Doctor, if one 
shot had been fired, this hall of Representatives would have been 
a slaughter pen." 

Lemuel Dale Evans was a man of considerable ability — indeed, 
above the average, but is conception of fidelity to the South must 
have differed very widely from that of Judge Reagan, as he was 
presiding Judge of the Supreme Court of Texas in 1870-71, He 
must have been appointed by Edmund J. Davis, hence could not 
have been of Judge Reagan's way of thinking. 

Judge Reagan came to Texas at a very early day, only a few 
years after the Battle of San Jacinto, when he was about 21 years 
of age, as he was born, as I recall, in 1818. It was delightful to 
hear him relate his reminiscences of the early days. He told 
me that he never played poker but once, and as far as he re- 
called never was drunk but once. 

He was a deputy surveyor and traveled over a large territory. 
On one occasion he went to Fort Worth, or to where Fort Worth 
now stands, but there was nothing there then but a government 
frontier post. The crowd got to drinking mustang grape wine, 
which I have heard was calculated to upset even the most hard- 
ened toper. Next followed poker. The old Judge said he never 
had known much about poker, but sat in to be sociable, and the 
next thing he distinctly recalled, he was waking up and his 
pockets were full of money; the pile being about $400. He said 
he couldn't account for it, as he really knew very little about 



AND OTHER PUBLIC MEN OF TEXAS 113 

the game. It must be assumed he had the proverbial luck of the 
greenhorn. That was his first and last spree of the kind. 

He said on one occasion a colony or tribe of Indians which 
had pitched its tents near Palestine, got obstreperous and the 
settlers had to send to Houston to get Sam Houston to come and 
pacify them, as nobody else could do anything with them. He 
was President of the Republic and quite a numbr of his staff 
came with him, and the party was joined on the route by one 
John I. Burton, who was quite a wag, and otherwise an original 
character. The President had not at that time forsaken the habit 
of indulgence in strong drink, which he did later in life under 
the influence of his devoted wife, and when he got to the camp- 
ing place, near Tennessee Colony, was just recovering from what 
the boys sometimes call a "jamboree." 

He at once sought his tent to get some sleep, and quiet his 
nerves and straighten up. The settlers who comprised, or com- 
posed, the Tennessee Colony had brought along a small number 
of brass instruments from Tennessee — enough for the beginning 
instruments of a brass band, and the performers were eager to 
display their musical skill (?). 

John I. Burton went to the band boys and said: "Would you 
like to give the President a serenade? He is very fond of music." 
The boys felt honored, so they armed themselves with their trom- 
bones and other horns, and Burton guided them to a position 
just behind the President's tent. Every nerve of the President 
was out of tune, and even the chirp of a cricket, or the hoot of 
an owl sounded as if it had been magnified by a microphone; 
and he yearned to fall off into a deep sleep. 

Just as it looked as if "balmy sleep, tired nature's sweet re- 
storer" was about to exert her dominion, the Colony band broke 
loose on the opening notes of "Hail Columbia," which tune begins 
with no soothing, dreamy melody, but its first note is full grown. 
The President rose and came out in the night, the very personifi- 
cation of rage, and the band struck for the thickest part of the 
woods. He soon learned that Burton was responsible for the 
trick, and Burton did not return to camp for three days. "What the 
President said no doubt made hot reading on the ledger of mor- 
tal accounts. 

The Judge upheld the majesty of the judicial office, and al- 
lowed no trifling with it. 

M-J father used to tell of one occasion upon which an old 
countryman got the best of the Judge. When I was a boy I used 
to wade and fish in Pool's Creek in Madison County. It was 
called for a family by the name of Pool — early settlers in that 
section. Tiiere was in the same section a family of "Cleeks" or 
"Clicks," and a feud broke out between the two families and sev- 
eral of the male members of each side, happening to meet by ac- 



114 GOVERNORS WHO HAVE BEEN 



cident in the primeval forest, a pitched battle followed, and one 
side, I believe the Pool side, was about wiped out. 

The only two persons who saw the fight outside of the par- 
ticipants, was an old "country cracker" and a negro, and, as I 
recall, the negro could not testify, as the law then was, though 
possibly I am in error on that point, which, however is not 
material. 

Indictment was returned in due course, and trial before a jury 
began, with Judge Reagan on the bench. The old countryman 
was put on the stand and told to tell what he saw, in his own 
words. He began: "I told Dick, that's a nigger boy that lives 
with me, that we would go hog hunting and fur him to git a 
wallet of nubbins to pitch the skittish hogs." Just then the Judge 
said: "See here, I don't want to hear anything about hogs, or 
Dick or nubbins. You tell what you saw when the Pools and 
Cleeks fought." "Yes, sir, your honor; I were a comin' to that 
pint," said the witness. "Then come to it quick," replied the 
Judge. "Well, as I were a-sayin', Dick and me went a hog huntin' 
and we found a bunch of shoats down back of my branch field." 
Again the Judge interrupted and said: "If the witness says any- 
thing more about Dick or hogs I will fine him. He must tell 
about the shooting." "Ef it please yer honor, I were a-comin' to 
that pint. As I were a-sayin', we found a bunch of shoats, and I 
told Dick to toss 'em a few nubbins, and he done it. Then we 
went 'cross the crick and we found some sows that wuz pow'ful 
skittish and I told Dick to toss 'em a few nubbins." The Judge 
could stand no more, and turning to the witness, said: "If you 
don't start out and tell about the shooting right from the start, 
I will send you to jail, so don't you mention hogs or Dick again, but 
tell about what you saw when you were where the killing took 
place." "Yes, yer honor, I were a comin' to that pint. As I were 

a sayin' " Just then the Judge called out: "Mr. Clerk, enter 

a fine against the witness." At that juncture an attorney who 
was present went up to the bench and told the Judge that the 
simple, uneducated old man meant no disrespect; that he was 
thoroughly honest and truthful, but his mind so worked that he 
could tell the thing only one way, and if the Judge would let him 
tell it that way, the jury would get the truth, so the Judge yielded, 
and the old fellow never missed a bunch of sows, barrows, or 
mixed hogs all the way down the creek, and when he got to the 
scene of the bloody meeting, he told all about the affray. 

Judge Reagan was Postmaster General of the Confederate Gov- 
ernment from the inauguration of President Davis until just be- 
fore the surrender of the Confederate Army, when, I am under 
the impression, he was made Secretary of the Treasury. My im- 
pression is also that he accompanied President Davis when he 



AND OTHER PUBLIC MEN OF TEXAS 115 

left Richmond, and was capturd with him, and I believe was im- 
prisoned in Fortress Monroe, but do not state that to be a fact. 

After he got back home I recollect, though I was but a boy, 
that be wrote a letter advising the people to accept the results of 
the war, and accord obedience to those in authority — that re- 
sistance was useless. It was good advice, but it aroused great 
feeling against the writer, as the people were so dumbfounded 
and disappointed by the result of the war, and so embittered by 
the treatment they had received, that they felt that Judge Reagan 
was trying to curry favor with the party in power, but they 
were grievously in error. He had a broader vision than did 
others, and was trying to serve his people. 

They looked upon him as they did upon Sam Houston when, 
before the war began, he warned them that their defeat was 
inevitable, that though they mjight win victories at first, the 
strength of the North would be too great for the South to combat 
successfully, and that the grass would grow in the streets of 
their cities and towns, and sorrow fill their homes, but they 
mocked at his warnings and laughed him to scorn. In a few years 
they saw his prophecies fulfilled in ruin, desolation, suffering and 
sorrow. 

His was a mind that forecast the future, just as he forecast the 
coming of the Texas Republic and his occupancy of the position 
of President of the young nation. 

Judge Reagan saw that necessity existed for regulation of in- 
terstate commerce, just as James S. Hogg saw the same necessity 
for railroad regulation in Texas, and he was the father of the 
Interstate Commerce Act, for which he fought when the fight 
seemed hopeless and success impossible, but adherence to convic- 
tion and persistency in pursuit of what he conceived to be the 
right was an outstanding element in his makeup. I heard him 
say once that there was certain legislation he endeavored to en- 
act when he was a member of the House in the Texas Legislature 
in 1847, but failed in his purpose, but that he had never lost 
sight of the matter, nor let up, and when he was a member of 
the constitutional convention of 1875 he achieved his purpose. 
For twenty-eight years he had treasured a desire concerning a 
matter which he believed was right and just, and he realized his 
desire after a lapse of time, that in the case of the average man 
would have served to have banished the idea from his mind. 

Governor Hogg appealed to him to resign from the Senate and 
take the chairmanship of the Railroad Commission in 1891, and 
with characteristic patriotism, he yielded to the call, and Gov- 
ernor Hogg appointed Hon. Horace Chilton as his successor — a 
selection that met statewide and deserved approval. 

James Reagan as a public speaker never attempted any flights 
of rhetoric or wove any garlands of fancy, but he was a most 
forcible and interesting speaker, because he knew what he meant 



116 GOVERNORS WHO HAVE BEEN 

to say, and said it with luminous clearness, and he spoke the 
words of an honest man prompted by the impulses of an honest 
heart. Judge Reagan was a most ardent admirer and valiant 
champion of Jefferson Davis to the day of his death. The same 
was true of Governor Lubbock. Both men had been thrown into 
intimate contact with Mr. Davis, and not only admired, but loved 
him. Such seems to have been the case with every man who 
knew Mr. Davis intimately. 

The attorneys general in his cabinet changed three times — Mr. 
Benjamin, Mr. Watts and Mr. Davis of North Carolina, having 
all filled that position, but my wife's father, who was Assistant 
Attorney General and frequently acting Attorney General, re- 
mained close to Mr. Davis during the entire war, and he, like 
Judge Reagan and Governor Lubbock, was his ardent admirer 
and devoted friend. There must have been those qualities in 
the chief executive of the Confederacy which challenged ad- 
miration and confidence. All intelligent men know that he was 
the most profoundly learned, cultured, and accomplished man 
ever in public life in America, but those who were not drawn 
into intimate association with him had the conception of him 
that he was autocratic, selfish, and cold, but the three men re- 
ferred to above resented vehemently that charge and declared 
that he was gentle, considerate, and in every way most lovable. 

He had, of course, that measure of self-confidence which his 
wonderful learning and intellect justified, and he may have at 
times exercised his power in a way that was not the wisest as 
subsequent events proved, but no man who knew him doubted 
his patriotism or unselfish devotion to duty. 

He was faithful in his conviction and to his people even unto 
death, and May 31, 1893, nearly four years after his death, and 
twenty-eight years after he had been shackled in a dungeon, he 
was laid in his final resting place in historic Hollywood amid 
such a demonstration of grief and love, and gratitude, and rever- 
ence, and devotion to a fallen cause as the world never saw be- 
fore — has never seen since — and will never see again. I know, 
because I was an humble constituent of the throng of 200,000 
people that followed the catafalque on which the casket rested. 

From New Orleans to Richmond, at noonday, and as the shades 
of evening fell and "in the dead waste and middle of the night" 
and at early dawn, thousands gathered with uncovered heads to 
do reverence to the South's great son. I saw strong, stalwart, 
brawny men, with cheeks wet with tears, men who had faced 
death on a score of battlefields, lift their children in their arms 
and press their faces against the glass-covered sides of the cata- 
falque that they might look upon the flower-heaped casket 
which held the pulseless clay of a statesman, soldier, and patriot. 

It seemed as if they were saying to their offspring: "Look upon 



AND OTHER PUBLIC MEN OF TEXAS 117 

him and learn what manhood meant, and learn that he was a true, 
brave, heroic servant of his people — a knightly son of a glorious 
race — a Christian gentleman, who loved duty and honor better 
than he loved life." 'Twas such a man that John H. Reagan 
loved, and I believe they have met again, where there is no dark- 
ness or tears, but where for the faithful there remaineth rest 
eternal. 



118 GOVERNORS WHO HAVE BEEN 



CHAPTER XIX. 

Charles A. Culberson was nominated at Dallas in 1894, and 
elected at the ensuing election. He entered public life dowered 
with gifts and advantages few young men have ever possessed. 
He had received the benefit of his legal training at the hands 
of his father, who, as a lawyer, stood second to no man of his 
day and time. His father's intellect was of the highest order, 
and his knowledge of the science of law was profound, and com- 
bined with such elements of success was great skill as a trial 
lawyer. I do not remember ever to have seen him, but believe 
from what I have heard that my statements are in accord with 
the facts. 

He gave his son the benefit of a thorough education, and the 
son availed himself fully of the opportunity afforded him. He 
had inherited a clear, strong, vigorous mind, and he served no 
apprenticeship, and went through no "starvation period," but 
from the outset of his career demonstrated a marked ability, 
and as a lawyer "arrived" at an early age. 

I for ten years represented the Western Union Telegraph Com- 
pany in many counties in Texas, and 1 very frequently ran upon 
a precedent in telegraph law that gave me much trouble, that 
was set by the Supreme Court in a case in which Governor Cul- 
berson was attorney for the plaintiff in the early days of his 
career as a lawyer. The holding in the case still remains as set- 
tled law, and perpetuates the fact that a lawyer of the first 
class was responsible for it. 

I have seen it stated that he won a very notable professional 
victory attacking an act of Congress, which he asserted was un- 
constitutional — a contention which the court of ultimate resort 
upheld. 

I have a friend, Hon, Frank Andrews of Houston, whose opin- 
ion as to any lawyer's professional ability is entitled to respect, 
for he is a lawyer of the first order of ability himself. He is 
a man that thinks before he speaks, and measures well his words 
when he speaks. He said to me on one occasion: "I was thrown 
in daily contact with 'Charley' Culberson for four years while 
he was Attorney General. When one man associates in a profes- 
sional way with another for that length of time, he is prepared 
to speak advisedly of his ability, because if his apparent ability 
is but a veneer of pretense, with no solid support, it will wear 
off. I thought at the end of four years, and I still think, 'Charley' 
Culberson is the best lawyer I ever saw." 

Governor Culberson possessed also the advantage of a most 
attractive and impressive personality. He was educated at the 
Virginia Military Institute, and his training in the rigid discip- 
line of that great school gave him a soldierly bearing. He walked 



AND OTHER PUBLIC MEN OF TEXAS 119 

with a firm tread, held himself erect, and was besides the hand- 
somest man I ever saw when he became Governor, and was, if 
possible, even handsomer when he entered the Senate. Had he 
lived in the age of mythology, he would have been given a place 
among the gods. 

His administration was marked by the ability and efficiency 
which might have been expected of him, and at the end of four 
years he was promoted, if it be a promotion, which I insist it 
was not, to the Senate. It was my pleasure as a member of the 
House to cast n\y vote as one which comprised a part of, if I am 
not mistaken, the unanimous vote he received. 

While he was Governor I enjoyed, as I am sure he did, a little 
episode in which he was one of the dramatis pcrsonae. I was 
passing through the south corridor of the Capitol one afternoon 
and saw a group composed of two women and two men, apparently 
much interested in studying Huddle's great painting, "The Surren- 
der of Santa Anna." I knew one of the party, the late George Walker, 
who was for years manager of the leading theater in Austin. I was 
attracted by the beauty of one of the ladies, and stopped near 
enough to the party to discover that Mr. Walker was not suffi- 
ciently familiar with Texas history to very much enlighten his 
guests upon the meaning of the picture. 

I stepped up and lifted my hat and said: "Mr. Walker, per- 
haps I can be of some service to you in the matter of interpret- 
ing the picture to your friends." He received my offer with evi- 
dent pleasure, and said: "Judge, allow me to present Mrs. Good- 
win, Miss Elliott and Mr. Goodwin," all of whom received the in- 
troduction most graciously. 

Mrs. Goodwin was, on the stage. Miss "Maxime" Elliott, known 
to millions as one of the most beautiful women in the world. 
Miss Elliott was her sister, later the wife of Sir Forbes Robert- 
son, the distinguished Shakespearean actor, a charming woman 
of shrinking modesty. 

After I had finished interpreting the meaning and historical 
significance of the painting, I said: "Now, Mrs. Goodwin, you 
must allow me the honor of presenting you to the Governor of 
Texas." "Oh, no!" she exclamed. "I could not think of in- 
truding upon the Governor." I said: "Madam, a pretty woman 
could never intrude upon the Governor of Texas. We don't 
elect that kind of Governors here." She still protested, because 
she doubtless never dreamed that she would be invited to meet 
the Governor, because, as I have said on a previous page. Gov- 
ernors in the Northern states are not as accessible to the general 
public as are Governors in the South. 

She and her party at last consented to accompany me; and so 
sure was I that they, and especially the beautiful woman whom 
I most especially desired the Governor to see, would be received 



120 GOVERNORS W HO HAVE BEEN 

cordially, we sent in no cards, nor did we linger in the outer 
ante-room, but walked straight into the inner room, opening 
directly into the Governor's private office. The door was open, 
and as soon as his gaze rested on Maxime Elliott he called out: 
"Come right in. Judge, and bring your friends." I did so. He 
had been engaged in conversation with a lawyer from my home 
city, who kept his seat. The stately beauty said: "You are busy, 
Governor, and I will not intrude." But the Governor did not in- 
tend to have her leave, so he said: "Oh, he can wait — have a 
seat"; and with characteristic grace and elegance, placed a 
chair for her. She faced west, and he seated himself facing 
east, and I stepped into the inner ante-room, where I could see 
both of them, and I said to myself: "There is the handsomest 
pair of human beings that ever met," and I have never since 
changed my mind. They would have furnished a theme worthy 
of the brush of any artist, however talented or famous. The 
Governor, of course, received Miss Gertrude Elliott and Mr. 
Goodwin courteously, but the more famous lady caught and en- 
chained his attention. 

Whether the Democrats were in control in the Senate when 
he entered that body, I do not recall; but, in any event, he soon 
rose to the chairmanship of the Judiciary Committee which, as I 
understand, is considered the highest honor among chairman- 
ships. 

He was re-elected in 1905, 1911 and 1916, and if his life is 
spared, will have completed four full terms when his present 
term ends. 

I am advised that his physical health is much impaired, but 
that his mental faculties function in all their normal brilliancy 
and strength. 

I was asked on one occasion by a friend in Virginia if I knew 
personally the two men who then represented Texas in the 
United States Senate. I replied that I did, and that J. W. Bailey 
and Charles A. Culberson were the two youngest, two handsomest, 
and two ablest men in that august parliament; and I have not 
since changed my mind upon that point. 

I have never taken any part in the attacks made upon Senator 
Bailey, because I have never believed that the business trans- 
actions which were so exploited in the press, had any relation 
whatever to his senatorial action. I believed, and said as much 
to his nearest friends, that there never was a man big enough or 
honest enough to be able to afford to ignore the apostolic in- 
junction about avoiding "even the appearance of evil," and that 
was, in my judgment, the height of Senator Bailey's offending. 

I believe that as he was conscious that he meant nothing 
wrong, and had no untoward or sinister purpose in mind, he 
could not realize that anybody else could think to the contrary. 



AND OTHER PUBLIC MEN OF TEXAS 121 

He made a mistake, as the best of us are liable to do, and if when 
he attacked in a bitter speech individual members of the Legis- 
lature, he had instead frankly stated that he realized he had made 
a mistake in view of his position as a Senator, but that any man 
who believed any improper motive had actuated him, misjudged 
him, and did him an injustice, and he was willing to let the 
dead past bury its dead, and to forgive those who had wronged 
him, he would have been at once restored to, and immovably 
intrenched, in popular favor. 

That he is a man of very high order of ability, no man can 
justly deny. He never hesitated to take the unpopular or weak 
side of any question; and while his judgment may often have 
been justly questioned, his courage cannot be doubted — and cour- 
age in modern-day politicians is a rare virtue. 

Had I been disposed to align myself with the anti-Bailey men, 
there were personal reasons which imperatively forbade. The 
father of his wife and my father were devoted friends. Her 
mother, a cultured, queenly woman, and my mother were neigh- 
bors and friends of long standing. Her sisters and mine were 
schoolmates, and her brothers and myself were collegemates and 
friends, and I never yet saw or heard or read of any kind of 
political controversy that could cause me to forget the treasured 
friends and associates of my parents, or the friends of my boy- 
hood days. 

Politicans come and go, and are forgotten. "The shouting and 
the tumult dies," often leaving nothing but regretful memories of 
bitter strife; but the friendships of early days are a treasure- 
house of pleasant memories which last until life ends. 

It matters not what the enemies of any man may say of him, if 
he commands the friendship and devotion of thousands of honest 
men, who are ready to do political battle for him, work for him, 
spend and be spent for him, and who adhere to him and follow 
his fortunes at all times, there is in him those elements of man- 
hood which entitle him to respect, however widely we may differ 
with hinl as to his political or personal actions. 

Charles A. Culberson was succeeded in the Governor's office 
by Joseph D. Sayers of Bastrop County. I was temporarily out 
of Texas when Governor Roberts was nominated the first time, 
but my recollection is that Governor Sayers was nominated for 
Lieutenant Governor at that time. 

Later he was elected to Congress, and served, I believe, six- 
teen years, much of the time as Chairman of the Committee on 
Appropriations. Texas never had in Congress a more honest 
or more efficient a representative. He was, too, a gallant sol- 
dier, and was, I believe, in General Tom Green's command, and 
won the commission of Major by his gallant services. 

He was very severly wounded in one of the battles in Louisiana. 



122 GOVERNORS WHO HAVE BEEN 

If his ankle was not broken, the wound at least was very severe 
and distressingly painful. He was hauled, as I remember, on a 
sugar cane cart to a point near the house of a wealthy planter 
who, as I recall, was, or had been. Governor of the State. 

Some of the escort asked permission for him to be taken into 
the house, but it was denied; so Major Sayers lay all night out 
of doors, or perhaps under the sugar shed, suffering intensely. 
The next morning the proprietor of the plantation came down and 
saw him, and perhaps asked his name, or heard he was an officer, 
and at once said: "If you had let me know you were an officer, 
I would have had you brought into the house, and will take you 
there now." "No, sir," said the suffering soldier, "you will not. 
If the humblest private in my command would not be welcomed 
and cared for in your house, I will not enter it. I would lie here 
under this shed and die first." That incident reveals the man- 
ner of man he is. 

During the convention at Galveston in 1898, when he was nomi- 
nated for Governor, I introduced him to a charming lady, whose 
father was his fellow soldier in Louisiana, and who fell in the 
forefront of the fighting. He received her with the utmost cor- 
diality, and when he discovered she was the daughter of his 
gallant comrade, he said: "Yes, madam, I knew your father. 
When I was wounded, or about that time, I entered a room where 
his body lay prepared for burial" — and he proceeded to pay 
an evidently heartfelt tribute to the hero who fell fighting thirty- 
five years before. 

Those who know Governor Sayers best, esteem him most. I 
had never been intimate with him, nor have I ever been under 
any obligation to him — yet I know what those think of him who 
claim intimacy with him. 

He vetoed the only bill drawn by me while in the House in 
which I felt any personal interest, and while I believed he made 
a mistake, yet I never doubted for a moment that he exercised 
his honest judgment. 

He was, for many years, the law partner of that able and noble 
man, G. W. (Wash) Jones, but after he entered Congress, he had 
but little time to devote to his profession, and when he left the 
Governor's office, never resumed the practice. 

It might have been supposed that after so long a time he would 
have grown rusty in the law, and his skill have somewhat 
abated, but a very able lawyer who had occasion to examine closely 
much of his work done only a few years ago, as Master in Chan- 
cery in the Federal Court in some very important cases involv- 
ing many complicated legal questions, told me the work was most 
admirably done, and evinced a very high order of legal ability. 

In the winter of 1889 I spent an evening with Major Sayers 
in the hospitable home of a mutual friend in San Antonio, the 



AND OTHER PUBLIC MEN OF TEXAS 123 

late J. Harvey McLeary, who was elected Attorney General in 
1880, when Governor Roberts was elected for the second time. 

I asked Major Sayers about a number of prominent men, Re- 
publicans and Democrats, with whom he was then serving in 
the house, naming several of them. I did not chance to mention 
John G. Carlisle who, as I recall, was then Speaker of the House. 
Major Sayers said: "Yes, the men you name are all bright, 
capable men; but I have been in Congress about six years, and 
have had opportunity to judge of the intellectual caliber of all the 
men, Republicans and Democrats, in both branches of Congress, 
and I have never yet seen one who, in point of intellectual ability, 
was in John G. Carlisle's class. There is not one of them who, 
figuratively speaking, he could not lay across his knee and spank 
as a teacher could a school boy." The Major's opinion was 
shared by all men who knew John G. Carlisle well. 

I was on one occasion talking with the Major's devoted friend, 
Harvey McLeary, a blunt, outspoken, apparently rough, but 
really kind-hearted and lovable man, devoted in his friendships 
and intense in his hatreds. He said: "Somebody asked me the 
other day why I was so devoted to Joe Sayers, and had so little 

confidence in (naming a man I knew well); I replied: 

'Because Joe Sayers was never faithless to a friend or a trust, 
and the other man was never faithful to one.' " 

Governor Sayers carried into his retirement the confidence, re- 
spect and reverence of every man who is capable of appreciat- 
ing unselfish patriotism, unswerving integrity and fidelity to con- 
viction and duty. 



124 GOVERNORS WHO HAVE BEEN 



CHAPTER XX. 
S. W. T. LANHAM. 

The successor of General Sayers was S. W. T. Lanham, He 
was, as I have said, defeated in the convention of 1894 by Gov- 
ernor Culberson. He was, I am sure, disappointed and discour- 
aged, for on one occasion he referred to it, when talking to me, 
as the time "when the iron entered my soul." 

He came to Texas shortly after the war an almost penniless ex- 
Confederate soldier, having gone into the army in South Caro- 
lina, his native state, when but little more than a lad, but he did 
a man's part. He long cherished the commendable ambition to 
be Governor, and risked the loss of a seat in Congress by offer- 
ing in 1894. 

He was at an early age made District Attorney of a judicial dis- 
trict which stretched from Weatherford away up into the Pan- 
handle. It was called the "Jumbo District" and he made many 
friends who were scattered over that vast domain. 

It rapidly filled up, and those friends served him a good part 
in later years. He was sent repeatedly to Congress, and after he 
was defeated at Dallas, the late Charles K. Bell, as I recall, took 
his place in Congress for four years. At the end of that time 
he was returned to Congress and was, I believe, a member when 
nominated for Governor in 1902. He had, if my memory serves 
me correctly, no opposition for the nomination. It took place 
at Galveston and Hon. John H. Reagan was on the stand of the 
presiding officer. 

He and Governor Lanham had long served in the House to- 
gether, and he was, so to speak, the Governor's patron saint, po- 
litically. They were devoted personal friends, and the first act 
of the nominee after acknowledging the honor conferred on him, 
was to go to Judge Reagan and embrace him as if he had been 
his father. It was really a very touching scene, because it spoke 
the language of the heart. 

Governor Lanham consecrated himself to the service of the 
State. He was never beyond the limits of Texas while in office. 
He was, I have heard, in large part self-educated, but he was cul- 
tured and familiar with the best literature, and was an eloquent 
speaker, and his record in public and private life was without a 
blot. 

He related to me an incident that occurred while he was Gov- 
ernor, which interested me very much. He was my guest at 
breakfast one morning in my home in Houston, and we were dis- 
cussing after the meal was finished, a railroad consolidation bill 
he had been urged to veto. It consolidated several detached short 
lines which were operated by the Southern Pacific. 



AND OTHER PUBLIC MEN OF TEXAS 125 

I had no connection with that or any other raih'oad, but the 
bill was so manifestly wise, and just, that I wrote Governor Lan- 
ham a personal letter, in which I quoted from Judge Reagan 
when he was on the Railroad Commission, relative to the desir- 
ability of consolidation under such circumstances. 

Just after the Governor had received my letter there came into 
his office a North Texas politician who had no special influence, 
but who had his ears always to the ground to catch what the 
"peepul" were saying and who thought to be "anti-railroad" was 
always safe. He came in, he said, to warn the Governor against 
approving the bill, because it was most dangerous. He was as 
nmch wrought up as if the welfare of the whole State depended 
upon the Governor's action. The Governor was a soft-spoken, 
unemotional kind of a man, who thought for himself, and never 
slopped over, but always tried to reach a right conclusion. 

When the self-constituted guardian of the "peepul's" rights 
had delivered himself, the Governor said: "I have just received 
a letter from a friend of mine in Houston who has no connection 
with the railroads in any way, and he gives me many appar- 
ently good reasons why I should approve the bill, but of course 
you are familiar with the situation and can help me reach a 
conclusion. K you will take this pencil and paper and map out 
the several lines, showing where they compete, and how con- 
solidation will be harmful, you will do me a favor." 

The North Texas statesman (?) knew no more about the coun- 
try through which the lines ran or about the length of the roads, 
nor what towns they touched than he did about the interior of 
Zululand, and of course, could not draw any kind of a map, as 
he was bound to confess. Governor Lanham could discover no 
peril to the public interests in the bill, and in due time ap- 
proved it, and the consolidated roads still operate under it. 

Texas is to be congratulated that the day has passed when petty 
politicians can ride into office on a wave of prejudice against 
corporations. 

That man who thought he could frighten Sam Lanham into 
vetoing a wise and wholesome piece of legislation because it was 
enacted for the benefit of a railroad system, was a fair repre- 
sentative of a class which has done Texas well nigh irreparable 
injury. 

Its number, heaven be praised., has been reduced to a harmless 
and scattered few, who the procession of progress has left be- 
hind as derelicts by the wayside. 

Governor Lanham's health was much impaired by four years 
of confinement and the burden of great responsibility, and he 
did not long survive the end of his term. 

A gallant soldier, faithful public servant and Christian gentle- 
man, he went to his grave consoled by the consciousness that he 



12G GOVERNORS WHO HAVE BEEN 

had the confidence and respect of the people he had so long 
lived among and faithfully served. His brilliant and capable son, 
Fritz W. Lanham, worthily fills the seat in Congress which his 
father honored for many years. 

Governor Lanham's associate in office as Lieutenant Governor 
was Hon. George D. Neal of Grimes County. He was a Senator 
from a large district for several years, and his ability and in- 
tegrity made friends for him in the Senate as they did elsewhere. 
I knew him well, and esteemed him highly. He practiced before 
me in the 12th District and was a dependable, honorable man, 
who deservedly had the respect of all who knew him. 

His sudden death a few years ago carried sincere grief to 
many hearts. 



AND OTHER PUBLIC MEN OF TEXAS 127 

CHAPTER XXI. 
THOMAS M. CAMPBELL and OSCAR B. COLQUITT. 

The successor to Governor Lanham was Thomas Mitchell Camp- 
bell of Anderson County. He was, as I recall, the second native 
son to be elected Governor, Governor Hogg being the first. Chero- 
kee County has the distinction of having furnished Texas two 
of its native sons to be Governor. That red land county is capa- 
ble of producing anything in the world. It is persistently pro- 
lific in peaches, peas, persimmons, peanuts, pumpkins, preachers, 
"possums" and politicians, with the accent on politicians; yet, 
strange to say. Governor Campbell was not a politician, in the 
sense that he had ever held or sought office. As I recall, he had 
never even been a candidate for office, but his East Texas en- 
vironment certainly enabled him to absorb a lot of political wis- 
dom — for he conducted a systematically planned campaign and 
won over strong opposition. He had been master in chancery in 
the matter of the receivership of the I. & G. N. R. R. during the 
administration of Governor Hogg and was, I believe, afterwards 
made receiver, and when the usual process of wiping out the 
stockholders and creditors had been accomplished, he became 
general manager of the system and demonstrated marked ability 
in that position. 

While holding it, he evidently became impressed with the evils 
of the "free pass" and was responsible for the abolition of all 
free passes, except with very limited exceptions. 

I was never in very deep sympathy with him in that matter, 
because I believed the roads ought to have been required to 
issue free passes to certain prescribed State officials, and the 
judges, and not have left the matter as one of grace or power. 
That would have neutralized all the objections usually made to 
giving passes by making it a legal duty, the performance of which 
no man could have justly complained of. 

He was a business man of ability and his administration was 
creditable to the highest degree to him, and helpful to the inter- 
ests of the State. 

I have known him for many years, and value him as a friend. 
His son and namesake went overseas at his country's call and did 
his duty as became a man and a native Texan. Governor Camp- 
bell is not only a successful business man, but a thoroughly effi- 
cient lawyer, a rather rare combination. 

He had the courage to be a prohibitionist when that faith and 
policy was not popular, but he lived to see his opinions vindi- 
cated, and his desires accomplished. 

He defeated Hon. Oscar Branch Colquitt for the nomination in 
1906, but four years later Mr. Colquitt won. 



128 GOVERNORS WHO HAVE BEEN 

Governor Colquitt's service in the Senate, and on the Railroad 
Commission was very helpful to him in administering the office 
of Governor, which he did most creditably. 

He and I clashed to a small extent while he was Railroad Com- 
missioner and I was Judge of the 61st District Court. I really do 
not exactly recall how the difference arose, but it was in some 
way brought about by a suit brought by the Express Company 
against the Commission. As I now remember, it had the effect 
to bring about strained relations between us, but I have never 
cherished any unkind feeling about it. and am glad to have been 
advised that Governor Colquitt has achieved, at least, a reason- 
able measure of success in the oil field. 

When the school buildings at Canyon City were burned, the 
insurance money, amounting to something over a hundred thou- 
sand dollars, passed under his control. When called upon for 
it, he not only promptly produced it, but like the faithful holder 
of the talent in Scripture, handed it over wuth interest, which ac- 
tion caused me much satisfaction. It was in striking and gratify- 
ing contrast with the action of another Governor later. 

He had the same courage on one side of the prohibition ques- 
tion that Governor Campbell had on the other, and it was to his 
credit that he never recanted, or trimmed his political sails to 
catch the prohibition breeze. 

I am not probably prepared to write temperately and impar- 
tially about the campaign of 1914, for while I cherish no personal 
ill will against the successful candidate in that campaign, I am 
the ardent friend of the one who was unsuccessful. 

The result of that campaign is known of all men. It was in 
some respects a most remarkable one. The successful candidate 
when he announced, was scarcely known beyond the limits of 
his own county. A well known citizen and able lawyer, who has 
held in Houston official station requiring a high order of legal 
ability, told me that when Hon. Jas. E. Ferguson told him he in- 
tended to be a candidate for Governor he would, had not a sense 
of courtesy restrained him, have laughed in his face, but he did 
announce, and did so wholly on his own initiative and respon- 
sibility, and boldly defied all other men whose names were sug- 
gested, and their friends. He is a man of forceful character and 
pleasing address, and while possessing only a limited education, 
he was calculated to, and did attract followers and adherents 
rapidly. 

It is but to state that which all men know that he attracted to 
the support of his candidacy all the enemies of prohibition, and 
all the active and passive enemies of organized Democracy in 
Texas. 

The anti-prohibitionists were ready to follow any man who 
was opposed to prohibition, and the Republicans were desirous 



AND OTHER PUBLIC MEN OF TEXAS 129 

of dividing and weakening the Democratic party if possible, 
and all the dissatisfied and discordant elements flocked to Mr. 
Ferguson's standard. All men, regardless of politics, have an 
instinctive admiration for boldness and courage, and the way in 
which Mr. Ferguson projected himself into the campaign had 
much of those elements in it. 

He had no organization behind him, and was the product of 
no convention; had taken counsel with none but himself, and 
such action appealed strongly to many who had never seen or 
heard of him. 

His novel, visionary, and impractical (and recently adjudged 
unconstitutional), land law or rent law, appealed to the unfor- 
tunately large tenant class, and the combination of voters which 
he attracted, secured him the nomination. It is unequestionably 
true that during his first term he was popular with both the 
legislators and the people. He was unpretentious and democratic 
in demeanor, "a good mixer," and stood by his friends at all 
hazards, and held undeniably a high place in the esteem of many 
people. Why and for what reasons and by what process he was 
deposed from the office of Governor is a matter of history, and 
his deposition v/as, in all its elements, a tragedy for him and for 
the State. 

It would be uncharitable and unkind to perpetuate the memory 
of the facts in these pages, and it is unnecessary to argue whether 
the result was right or wrong. 

It was reached by constitutional and legal proceedings con- 
ducted according to long established precedents, and presumably 
at least it was right; and it is generally conceded to have so been. 

While this is true, it was a result deeply to be regretted, or 
rather it is to be regretted, that the cause which made such pro- 
ceedings and result necessary, should have existed. I cannot 
believe that any man is so indifferent to the good name of Texas, 
or to the misfortunes or errors of any fellow man, as to be glad 
that such a drama was ever staged, or that the curtain fell upon 
such a tragedy in the life of a man who had held the high office 
of Governor of a sovereign state. 

While I am under no obligation to the chief actor in the la- 
mentable drama, and claim no more than a passing acquain- 
tance with him and have no reason to be and am not his admirer, 
yet I wish him no ill fortune, and personally I regret that a career 
which presented promise of honorable achievement should have 
been so tragically cut off. It marred a record made by Govern- 
ors of Texas for nearly three quarters of a century, and carried 
to many hearts sincere sorrow that her escutcheon, radiant as it 
was with the light of honorable service, should have been ulti- 
mately darkened. 

As I have said, I am the ardent friend of the man who was the 



130 GOVERNORS WHO HAVE BEEN 

unsuccessful candidate for the Democratic nomination for Gov- 
ernor in 1914. 

I have known him since he was born. I went to school to his 
mother in a log school house when I was so young I can hardly 
remember the time. 

I knew his father, who was a Methodist minister, when I was 
a mere lad. I knew the son when, as a penniless boy, he toiled 
at manual labor for a livelihood, I knew him as a successful mer- 
chant, and as the efficient mayor of his native town. 

As Judge, I signed his law license in 1890, and six weeks later 
he tried before me, against as able opposing counsel as there were 
in Texas, a case involving in a most novel way the doctrine of 
estoppel, in which case I, by my charge, stretched the doctrine 
to a limit it had never before been carried in Texas. 

He won his case before the jury, and the Supreme Court af- 
firmed the judgment. 

I knew him when he was a most efficient Congressman, and 
for these reasons, knew he was intellectually and morally quali- 
fied for the office of Governor. 

I knew that the charges brought against him, while they did 
not, and could not, impeach his integrity, were calculated to 
prejudice him in the eyes of many people, and were made in vio- 
lation of the primary obligations of social good faith which are 
binding upon all gentlemen. 

I do not mean to be understood as intending to reflect upon the 
good character, or good citizenship of any man who supported 
the successful candidate, but it is but to state that which is true, 
to say that the overwhelming majority of those who did so were 
the enemies of the policy of prohibition, while the unsuccessful 
candidate espoused that cause, of which he had been the consist- 
ent advocate for many years, and he represented the hopes, 
wishes and heartfelt desires of nine out of ten of the women 
of Texas; and my belief has always unwaveringly been, that the 
side of any public question of a social or moral nature, in which 
a majority of women are found is always the right side. As 
inimitable "Gus" Cook used to say, "Man reasons, but God whis- 
pers to a woman and tells her what is right." Thomas H. Ball 
and all the men and women who followed his banner were 
against liquor and the liquor traffic, and against the open saloon, 
and therefore, were on the right side economically, socially and 
morally, and the majority of the people of the whole nation has 
vindicated their position since. 

There were those whom I esteem who voted against Tom Ball, 
but no man who is at once candid and honest will deny that he 
was leading the forces which did battle to suppress and abolish 
an agency and influence which wrought ever-increasing injury 



AND OTHER PUBLIC MEN OF TEXAS 131 

to the best interests of society, and which was always a menace 
to decent, honest government. 

I heard him long before he became a candidate, predict before 
an immense audience, that the day was coming when this would 
be a "saloonless nation." Many mocked at the prediction, but it 
has been fulfilled. 

He never compromised on the question of prohibition, or 
evaded that issue when he was a candidate for Congress, and 
Harris County, with 500 saloons, was in his district, yet was 
never defeated. I know he did not seek at the Fort Worth con- 
vention the position of leadership which was conferred upon 
him, but he accepted the call, and though he was defeated, he 
had rather have failed as leader of the forces of social virtue 
and civic righteousness than to have won as leader of the oppos- 
ing combination. 

Subsequent events brought home to the people of Texas in 
humiliation and regret the realization that the majority had 
grievously erred. 

Tom Ball battled for justice to this generation, and to genera- 
tions yet unborn by seeking to abolish a traffic which was the 
fruitful mother of social and moral "woes unnumbered," and 
justice never forgets. 

The epigrammatic utterance of that great lawyer, Jeremiah 
S. Black, before the Electoral Commission of 1877, "Justice 
moves with a leaden heel, but strikes with an iron hand," 
found speedy confirmation in events and proceedings already 
referred to. 

Texas, and not Tom Ball, was the victim of popular error. Had 
he been made Governor of Texas, no tribunal would ever have 
had occasion to sit in adverse judgment on any act of his. 

He would have taken up, and have laid down, that exalted trust 
with clean hands and a clear conscience, as he has in the past 
taken up and laid down every trust, personal or official, ever 
committed to his keeping. 



132 GOVERNORS WHO HAVE BEEN 



CHAPTER XXn. 
WILLIAM P. HOBBY. 

As an original proposition I doubt whether William P. Hobby 
would ever have offered for the nomination for Governor, but 
having succeeded automatically the deposed Governor — and the 
world war being on— it was natural that he should desire ta 
serve a term by election. 

He manifested energy, ability and a thoi'ough conception of 
the requirements of his position as soon as he assumed the 
office of Governor by succession, and it was certainly the part 
of wisdom not to disturb and distract the people by a contest 
over office when they were absorbed in the great war. 

I had not seen or spoken to Governor Hobby ten times in ten 
years when the question of the next election was beginning to 
be discussed. I knew his distinguished father, and esteemed him 
highly — but I had never seen the son in the office of Governor — 
nor was I under any obligation to him, but I wrote a communi- 
cation to the Houston Post setting forth my reasons for believ- 
ing he should be retained in the position, and why there should 
be no struggle over the office in time of war. 

I would have taken the same position had any other decent 
man been in Governor Hobby's place. It was in my judgment 
manifestly what the situation imperatively demanded, and all 
fair-minded men will concede that William P. Hobby has 
"borne himself so meekly in his great office" as to have de- 
served the plaudits bestowed upon him by the great tribunal of 
the party — the State Convention. 

I think it altogether -likely that if conditions had been normal 
and Governor Hobby's immediate predecessor had served out his 
time, that B. F. Looney would have been made Governor. I am 
sure I was predisposed in his favor, though I would not have 
known him had I seen him, and would not now know him, but I 
regard him highly, both as a lawyer and a public servant, be- 
cause of his efficient service as attorney general, and the esteem 
entertained for him by friends of mine in whose judgment I 
have confidence. 

As I have said before, Texas has been most fortunate in the 
matter of Governors. All of them may not have been men in- 
tellectually pre-eminent, but none has ever been the tool of any 
ring, or been subservient to sinister influences, and every one, 
save one, took and laid down his high trust with clean hands, a 
record of which any Texan should be proud. 



AND OTHER PUBLIC MEN OF TEXAS 133 



HON. PAT M. NEFF. 

Since I began writing these sketches Hon. Pat M. Neff has been 
inaugurated Governor of Texas. 

I have never enjoyed the privilege of an intimate friendship 
with him. Our respective homes were some two hundred miles 
apart, and in consequence we met only as two men in public life 
ordinarily meet. 

He served with marked efficiency as Speaker of the House in 
the Legislature, and was later for a number of years County At- 
torney of McLennan County, and in that capacity performed 
with ability the duties of District Attorney, besides conducting a 
large and successful law practice. 

The strongest of his opponents for Governor was Hon. R. E. 
Thomason of El Paso, Speaker of the House of the 36th Legisla- 
ture, and a most admirable gentleman. My son was a member of 
that body, and was the ardent admirer and political and per- 
sonal friend of Mr. Thomason, and on his account I supported 
that gentleman in the first primary, but in the second primary 
supported Mr. Neff. 

There was in the way in which he prosecuted his campaign 
for Governor that which challenged my admiration, as I am sure 
it did that of many others. It was marked by no fanfare, nor 
backed by any elaborate organization, or managed by any ma- 
chine. 

He took his Ford and was his own chauffeur, and went directly 
to the people, frankly and unreservedly declaring himself on 
every public question. 

Like his chief competitor, he had the enthusiastic support of 
his home people, than which there is no safer test of the merits 
and moral worth of any man. 

He has taken hold of the helm of the ship of State with a ready 
and firm hand, and has taken a commendably bold stand on 
every present day public question. It is very gratifying to every 
Texan to know that he gives promise of maintaining that high 
standard of gubernatorial honor and efficiency set by J. Pink- 
ney Henderson three-quarters of a century ago, and which has, 
save with one regrettable exception, been consistently main- 
tained by all who have followed the first great Governor in the 
exalted station of Chief Executive of Texas. 



134 GOVERNORS WHO HAVE BEEN 

EARLY TEXANS AND THEIR 
DESCENDANTS 



CHAPTER XXHI. 
STEPHEN W. BLOUNT. 

Stephen W. Blount was an East Texas man. He was one of the 
signers of the Declaration of Texas Independence, and lived to 
a ripe old age, dying within comparatively recent past. 

So far as I know, he never strove to acquire any official posi- 
tion, but devoted himself to business. 

He made his home in San Augustine County, and conducted a 
general merchandise business in the town for many years, and 
accumulated a comfortable fortune. 

His son, Stephen W. Blount, has practiced law in the courts of 
Nacogdoches County, and in the adjoining districts for many 
years with marked and deserved success. He represented his dis- 
trict in the House a number of years ago for one term, but has 
never since sought any political position, so far as I know. 

His brother, Edward A. Blount, died only a few years ago, 
leaving a handsome estate. His charming family still lives in 
Nacogdoches, and has a lovely summer home a few miles out of 
town. He was a gentleman of high character, and a public-spir- 
ited, hospitable citizen. 

Stephen W. Blount related to me a few years ago an incident 
which, had it occurred in these days, would have shocked all 
the certified accountants, and auditors, and bookkeeping experts. 
He said his father had employed a new bookkeeper and one day 
saw him making entries on the blotter after one of the family, or 
a servant, had come into the store and procured a quantity of 
family supplies. The old gentleman asked the bookkeeper what 
he was doing. He replied: '"I am charging up those articles 
that have just gone over to the house. The old gentleman said: 
"Never mind about that. Don't you bother the books with anything 
any of my family get. This is my store, and when it is not able 
to furnish my family all they need I'll close it up." 

Everybody knows that such a family as the Blounts lived lib- 
erally and generously, yet not even the slightest memorandum 
of anything taken by it from the store, no matter how much, was 
ever made unless it was actual cash, and that was set down only 
to keep the cash balance straight. That incident aptly illustrates 
the Southern idea of providing for comfortable living. The house 
into which the goods went was open to everybody, rich or poor, 



AND OTHER PUBLIC MEN OF TEXAS 135 

and the humble and exalted alike were welcome participants in 
a generous but unostentatious hospitality. 

If any merchant in this day and time were to do the same 
thing, a thousand "certified accountants" would proceed to prove 
that he was headed for hopeless bankruptcy, yet that old Texas 
pioneer and patriot, living much of the time a hundred miles 
from a railroad, in a village amid the primeval forests of East 
Texas, built up and transmitted to his worthy posterity a hand- 
some estate. 

C. B. STEWART. 

Dr. C. B. Stewart of Montgomery County, was another signer 
of the Texas Declaration of Independence. He lived for many 
years in Montgomery County, and died there. 

I am under the impression that he left quite a large landed es- 
tate. I have seen him often. He was very deaf, and always car- 
ried an ear trumpet, almost as large as a trombone. He was a 
man of high character, and commanded universal confidence and 
respect. 

I have no doubt that if it were possible to take the names of the 
fifty-three signers of the Declaration of Independence, and study 
their characters and trace their careers, there would be revealed, 
as to most of them, if not all of them, that they were efficient, 
honorable men, and worthy citizens. 

There is a substantial basis for such belief. In the first place, 
none but courageous, virile, self-reliant men ever go out as pio- 
neers into a vast unknown and untenanted domain, for the pur- 
pose of subduing it to the purposes of civilization and establish- 
ing free and stable government. 

It is only that character of men who are ready and willing to 
dare the dangers, and endure the hardships involved in such 
an undertaking, and success is dependent upon mutual fidelity 
and honor upon the part of all who unite for such a purpose. 

It requires, too, practical men to achieve success in such an 
undertaking. They must needs be men with vision, of course, 
but possessed also of the ability, judgment, and foresight to 
translate their visions into realities. The man who is devoid of 
physical or moral courage, or who is a seer of visions and a 
dreamer of dreams, but is without practical ability, has no place 
in such a body of men. 

Those fifty-three men on the banks of the Brazos on March 2, 
1836, representing at the outside only about 30,000 people, threw 
down the gauntlet of defiance to a nation of 7,000,000, and de- 
clared that they were and had the right to be free and inde- 
pendent; and they made that declaration good seven weeks later. 
Such men had the courage and judgment and efficiency neces- 
sary to success in any field of activity, and it is not surprising 



136 GOVERNORS WHO HAVE BEEN 

that they not only achieved success in the sphere of business en- 
terprise, and left a posterity worthy of such an ancestry, but left 
to that posterity legacies of great material value, but of less value, 
and less to be esteemed, than is their example of patriotism, cour- 
age and fidelity to duty. 

THE FISHERS, BRYANS, AUSTIN, BEE AND CROCKETT. 

Another signer of the Declaration of Independence was S. 
Rhoads Fisher, who came to Texas in the early days. 

He bore an active and useful part in the establishment of the 
Republic and in formulating its policies. He was a man of liberal 
learning, and literary culture, and a gentleman by birth and breed- 
ing. He and General Sam Houston had some differences at one 
time over some public question, and he sent the General a chal- 
lenge to fight a duel, but the matter was adjusted in some honor- 
able way, and the cordial personal relations of the two as they 
existed before, were entirely restored, and were never again 
disturbed. 

The duello was not an unheard of method of settling questions 
of differences in those days. As I recall, from either having 
heard it or read of it. General Felix Huston and General Albert 
Sidney Johnston fought a duel at a very early day, and General 
Johnston was wounded in the hip. 

It is said that General Houston fought a duel in Tennessee with 
one Judge White, who was so dangerously wounded as to have 
made his recovery doubtful for a long time, and it may have 
been that fact which influenced General Houston to not desire 
to again adopt that method of settling a personal difference. 

Personally, I have always believed that a duel was a most fool- 
ish way to determine any question, and no duellist ever chal- 
lenged my admiration, but many better men than I am, were 
earnest advocates of the practice. I am told that that brilliant man, 
Henry A. Wise of Virginia, believed in the duel to the last day of 
his life. 

It took more courage, in my judgment, to decline a challenge 
than it did to fight one, when the custom prevailed of fighting 
duels. A friend of mine, who served under General Forrest, per- 
haps as a courier on his staff, told me that General Earl Van 
Dorn, a fiery, hot-blooded Southern soldier, once challenged Gen- 
eral Forrest to a duel. 

General Forrest said: "General Van Dorn, no man doubts your 
courage or mine, and it is not necessary for us to go out and 
shoot, or shoot at, each other to prove our courage. Furthermore, 
there is an army of the enemy of our common country in front 
of us, and it is our duty to fight it, and not each other, therefore, 
your challenge is declined." 



AND OTHER PUBLIC MEN OF TEXAS 137 

Nathan Bedford Forrest was the greatest cavalry leader the 
world ever saw, and was courage incarnate, but never, when he 
rode with nodding plume and flashing saber amid the hell and 
hail of battle, as he did on many a bloody field, did he display a 
higher type of courage than when he declined the challenge of 
his younger fellow soldier. 

S. Rhoads Fisher was the father of Rhoads Fisher, who was for 
so many years connected with the General Land Office of Texas, 
and who died in the comparatively recent past, and whose son 
Hon. Lewis Fisher, was, for a number of years, the very efficient 
judge of one of the District Courts of Galveston, and later was 
Mayor of that city. Judge Fisher's wife is the granddaughter of 
James Wilmer Dallam, the reporter of Dallam's decisions. So 
far as my knowledge, acquired either by reading or by tradi- 
tion, or otherwise, extends, the descendants of every Texas vet- 
eran have reflected credit on their ancestry. 

The interpreter between Santa Anna and Sam Houston, as the 
latter lay wounded on the battle field of San Jacinto, was Moses 
Austin Bryan. He lived to a ripe old age, respected and venerated 
by all who knew him. 

One of his sons was, for a number of years, Judge of the 21st 
Judicial District of Texas, and another son, Louis R. Bryan, has 
been President of the Texas State Bar Association and is now a 
resident of Houston, and is one of the most efficient and capable 
lawyers at the bar of Texas. 

The son of L. R. Bryan, L. R. Bryan, Jr., now assistant cash- 
ier of the Lumbermans National Bank of Houston, sprang to an- 
swer his country's call and went overseas and took his place 
where death held high carnival, and stayed until the last shot 
was fired. 

He bore himself as might have been expected of one in whose 
veins runs the blood of the patriot, Moses Austin Bryan, his pa- 
ternal grandfather, and the blood of that princely gentleman, 
Chauncey B. Shepard, his maternal grandfather, and one who 
was of the same race and lineage of that knightly soul, Seth 
Shepard, who, when a mere boy, went out to do battle in defense 
of his native Southland. 

There is one name connected with Texas history which stands 
pre-eminent in the calendar of Texas patriots, that of Stephen F. 
Austin who, Sam Houston said, was justly entitled to be called 
"The Father of Texas." 

He was never married, and died at a comparatively early age, 
but he had sisters, or at least one sister, who came to Texas at 
a very early day and his collateral kindred have always been and 
are yet among the worthiest citizenship of Texas. The names 
of the Perry and the Bryan families, all of whom were of his kin 



138 GOVERNORS WHO HAVE BEEN 

by consanguinity or affinity, have always been synonyms of 
social and moral worth, and exalted character. 

My friend, Hon. E. T. Branch, Criminal District Attorney of 
Harris County, a grandson of a noble Texas pioneer, gave me, a 
few years ago, a number of autograph letters of Stephen F. Aus- 
tin, which I cherish as a treasure beyond all price. 

One of the letters, written to a relative, I believe a sister, re- 
veals that he was urged to go to Mexico City to endeavor by ne- 
gotiations with the administration of the republic of Mexico, of 
which Texas, a Mexican State, \yas then a part, to get relief from 
certain oppressive government regulations, the exact nature of 
which I do not now recall, and the letter is not at hand as I write. 

He said he did not want to go, but wanted to settle down on his 
farm near his sister and rest, and was further desirous of not 
undertaking the journey, because it would cost him much money, 
which he would not be able to get back. On the margin of the 
letter there is written in pencil by some relative a memorandum 
to the effect that the money was never returned. 

He made the journey — not in Pullman cars, paying 3 cents a 
mile, and getting 20 cents from his government — but went across 
trackless plains, haunted by savages, through primeval forests, 
and miasmatic swamps on a mission of patriotism, and the hall 
of his reception was a dungeon, and he came back broken in 
health, and soon passed away. 

He was essentially a Texas pioneer, though never a Governor 
or judge or general, yet but for him and his compatriots, there 
would have been no Texas such as there is today. 

They gave Texas to the world, and with their own hands, 
nerved by their brave hearts, wrote their own glorious record. 
Yet there are people, even in Texas, who speak of them with ill- 
concealed sneers, yet the names of those who made possible this 
imperial commonwealth will live in song and story when those 
who disparage their achievements, shall have sunk into an obliv- 
ion from which no trumpet will ever awake them to resurrec- 
tion. 

His nephew, Hon. Guy Morrison Bryan, whom I knew, and who 
was a most estimable gentleman, was elected to the Legislature of 
Texas in 1848, to the State Senate a few years later, to Congress in 
1857, and was Speaker of the House of Representatives of Texas 
in 1873, and again a member of the House in 1878. He married 
a daughter of William H. Jack, who fought at the Battle of San 
Jacinto as a private and later achieved distinction in official 
station, and at the bar. 

His son, Guy M. Bryan, Jr., a grand-nephew of Stephen F. Aus- 
tin, is an executive officer of one of the leading banks of Hous- 
ton, and a justly respected citizen. 



AND OTHER PUBLIC MEN OF TEXAS 139 



General Hamilton P. Bee came to Texas at 15 years of age, 
when his father, Bernard E. Bee, was holding the position of Sec- 
retary of War of the Republic. 

His brother, Bernard E. Bee, christened General T. J. Jackson 
"Stonewall," just before he (General Bee) while leading his in- 
trepid South Carolinians and waving his gleaming sword, pre- 
sented to him by the State of South Carolina, fell at fiist 
Manassas. 

General Hamilton P. Bee was Speaker of the House of Repre- 
sentatives of Texas at 34 years of age — a position to which my 
father helped elect him. He was a gallant Confederate soldier, 
and a cultured gentleman. 

As late as the administration of Governor Ireland he served as 
Commissioner of Insurance, Statistics and History. 

His son, Carlos P. Bee, has filled the position of District Attor- 
ney and State Senator, and is now a member of Congress from 
Texas. 

I did not, and do not cherish the purpose to elaborate on this 
special theme, but it seems to me to be germane to my main theme 
of Governors, Legislators and Jurists, to show what manner of men 
those were who transmitted to us so splendid a heritage. 

By the operation of the same divine and unerring law which 
transmits the penalties for ill-lived lives and blessings for lives 
lived uprightly and in the fear of God "to the third and fourth 
generations" the splendid qualities and sturdy virtues which made 
noble and admirable the characters of their fathers have been 
transmitted to the descendants of the early pioneers of Texas, 
and have so dowered them that they have stood every test of 
service, and proved themselves worthy sons of noble sires. 

It may be thought by some who read these pages, that I stress 
too greatly the subject of the early Texas pioneers, and some 
reader may infer that I claim descent from some one of that heroic 
band, but I do not. 

I came to Texas, an infant in my mother's arms, long after they 
had wrought their great work, but I would deem myself unwor- 
thy to be a Texan if I did not appreciate their great achieve- 
ments and admire their noble characters. 

They were brave soldiers, unselfish patriots, farseeing states- 
men, endowed with great constructive ability, and they left to 
those of us who now live and generations yet unborn, the richest, 
noblest heritage ever bequeathed by valor and statesmanship to 
coming generations. 

I regret that I can not clam to be "kindred to the blood" of any 
of them, but I am proud to be able to say that my three sons are 
the great nephews and my three daughters the great nieces of 
Davy Crockett. I had rather they should be of kin to him than to 
any king or prince that ever wielded a scepter, or wore a crown. 



140 GOVERNORS WHO HAVE BEEN 

He wore a coonskin hunting cap, and a buckskin hunting shirt, 
but that coonskin cap covered a clear brain and a level head, and 
under that buckskin hunting shirt, throbbed as heroic a heart as 
ever poured out its rich, red blood that liberty might live. 

He was not cultured nor highly educated, but he lived uprightly 
and wrought nobly. He was one of the bold, brave leaders who 
blazed the way for the advancing cohorts of civilization and 
progress. He lived as became a man, in the highest sense of that 
term, and like a man, he died. 

He fell fighting to the last at the foot of a statue of the Prince 
of Peace, within the consecrated walls of the Alamo, and of him 
it can be truly said: 

"He taught men how to live, and Oh, too high 
A price for knowledge, taught men how to die." 

That man, I care not who he may be, that speaks, or even thinks, 
in terms of disparagement of the fathers and founders of Texas, 
is unworthy to share in the fruits of their faithful services and 
heroic sacrifices; and ought to take his feet off the soil they con- 
secrated by their devotion and hallowed by their blood, and go 
elsewhere to live, if he purposes to longer cumber the earth with 
his unworthy presence. 



AND OTHER PUBLIC MEN OF TEXAS 141 



EAST TEXAS MEN. 



CHAPTER XXIV. 

I have never enjoyed an extensive acquaintance in North Texas, 
but was reared in the piney woods of East Texas. It has been 
my good fortune to know many of tlie prominent men of tliat sec- 
tion, which was settled and in the enjoyment of many of the 
benefits and blessings of civilization and refined society, when 
the red man roamed over North, Northwest and West Texas, but 
now those parts of Texas which were settled last, have developed 
with marvelous rapidity, and a great future for them is kindling 
in splendor. 

If time and space permitted, it would be a pleasure to deal 
with the name of every East Texas man who has held public po- 
sition. The list is worthy of being perpetuated, though writing 
wholly from memory, I may omit some as worthy as were those 
I remember, and I shall not undertake to name all of those. 

I never saw General Thomas J. Rusk, so far as I know. His 
career ended when I was a mere child. He commanded a wing 
of the Texas Army at San Jacinto, and when Texas became a part 
of the Union, represented her in the United States Senate, and 
at the time of his death, was Chairman of the Committee on 
Postoffices and Postroads. His home was in Nacogdoches. 

Frank W. Bowden was, I believe, from Anderson County, and 
I once heard Governor Roberts say he was the most eloquent man 
ever in Texas. 

Colonel Frank B. Sexton of Marshall, but later of El Paso, was 
a typical Southern gentleman, of stately, courtly manners and 
the highest personal character. 

He was elected to the Confederate Congress during the war be- 
tween the states, and was for many years attorney of the T. & P. 
Railway. He was a contemporary at the bar of that able lawyer 
Wm. Stedman of Marshall, whose mantle as a lawyer descended 
upon the worthy shoulders of his son, N. A. Stedman, who served 
at one time on the Railroad Commission, and also as District 
Judge at Fort Worth, and has for a number of years, represented 
the allied railway interests of Texas. 

Tyler is by no means a large city, and until within the com- 
paratively recent past had hardly arrived at the dignity of a city, 
but it has furnished to the bar of Texas a greater number of able 
lawyers than has any single town or city within my knowledge 
in proportion to its population: Micajah H. Bonner, G. W. Chil- 
ton, John M. Duncan, one of the most graceful and skillful trial 



142 GOVERNORS WHO HAVE BEEN 

lawyers that ever appeared before me; Cone Johnson, lawyer and 
orator; Horace Chilton, John L. Henry, Tignal W. Jones, John 
C. Robertson, Sawnie Robertsoni H. G. Robertson, T. N. Jones, N. 
W. Finley, one of the ablest judges ever on the bench of the Civil 
Appeals Court; Henry B. Marsh, W. S. Herndon, J. S. Hogg, R. B. 
Hubbard, and A. G. Mcllwaine and J. M. Edwards are, or were, 
all Tyler men, and there is not one of the list who is not above 
the average in legal ability, while some are, or were, among 
the ablest lawyers at the bar of Texas. 

Even in the small towns, mere villages, were able lawyers. 
Colonel E. B. Pickett, once Lieutenant Governor, and Hon. Chas. 
L. Cleveland, both lived at Liberty. The latter was at one time 
District Judge, later a partner for many years in Galveston of 
Asa Hoxie Willie, and died in the office of Criminal District 
Judge of Harris and Galveston Counties. I was in Houston when 
he died, having gone there to sit for him during his illness. 

Both Colonel Pickett and Judge Cleveland were able lawyers 
and E. B. Pickett, Jr., grandson of Colonel Pickett, who may 
proberly be called E. B. Pickett HI, is a young lawyer of recog- 
nized ability. 

Judge Jas. A, Baker and Leonard A. Abercrombie were both 
from Huntsville and both were able lawyers. Judge Baker was, 
during the Civil War, judge of the same district of which Judge 
Peter W. Gray was judge prior to the war. 

He, after the war, about 1872, became a partner of Judge Gray, 
and the firm of Gray, Botts & Baker by the death of all the 
original partners, and the accession of others, is now the firm 
of Baker, Botts, Parker & Garwood. At one time or another 
nearly every member of the firm has practiced before me, and 
all without exception, have demonstrated marked efficiency as 
lawyers. 

I heard the Chief Justice of the Supreme Court of Texas say re- 
cently that a case in which Jesse Andrews, Esq., of the firm ap- 
peared on one, the winning side, and Morris R. Locke, Esq., of 
Dallas, on the other, prepared the briefs, was the best briefed 
case he had ever examined, and other appellate judges who han- 
dled the record, have told me the same. 

The head of the firm, Captain Jas. A. Baker, combines legal 
knowledge, the ability to advise wisely, and rare financial ability, 
a most unusual combination. 

I have frequently recalled a remark made to me by Judge 
Baker before I began to practice law, to the effect that he meant 
to train his son for the corporation practice, as it was "destined 
to be the future field of profitable practice." The language was 
prophetic, as the statement was made before Judge Baker went 
to Houston to live. The son is now the executive head of a firm 
which was, in a large sense, founded by an East Texas lawyer. 



AND OTHER PUBLIC MEN OF TEXAS 143 

which firm represents more corporate and commercial interests 
than any other in Texas, if not in the South. 

I knew Judge Baker from my earliest boyhood. He and my 
father were near neighbors and close friends. Both were fond 
of good company, were famous raconteurs, and Judge Baker 
played the violin beautifully, and was a man of great social 
charm. 

Leonard A. Abercrombie resigned the office of District Attor- 
ney to enter the Confederate Army, in which he held the rank of 
Lieutenant Colonel, and from which he returned utterly impov- 
erished. He was, take him all in all, one of the ablest, most re- 
sourceful and skillful trial lawyers in civil or criminal cases I 
ever saw. 

I read law in his office, and he practiced law before me for 
nearly seven years, and was a courtly gentleman of the most 
exalted character, and the most faithful friend ever a man had. 

One of the Judges of the Court of Criminal Appeals nominated at 
Galveston in 1876 after the enactment of the Constitution which 
created the Court, was Malcolm D. Ector of Marshall, Texas. 

He was one of the 20th District Judges who were removed from 
office in 1867. He commanded a brigade in the Confederate 
Army and lost a leg above the knee in one of the bloody battles 
in Tennessee, probably the battle of Franklin. 

His nomination was part of the fruits of the appeal made by 
Geo. P. Finlay for recognition and reward of Confederate Vet- 
erans, to which I referred to in a previous chapter. He was an 
elegant gentleman, and served most efficiently as Presiding Judge 
of the Court until the fall of 1879, when he died, and was suc- 
ceeded by Hon. George Clark, who was appointed by Governor 
Roberts. 

In August, 1880, Judge Clark was defeated at Dallas by the 
Hon. Jas. M. Hurt. It is said when Judge Roberts heard the result 
of the balloting, he said: "I can beat 'em making judges." 

I think it very likely that he, like myself, had never heard of 
Judge Hurt before, for experience soon demonstrated that though 
a very able man was defeated, the one who was selected made 
a great judge. 

ROBERT M. WILLIAMSON. 

There will be in all likelihood many who will read this humble 
volume who will not recognize the man, the outlines of whose life 
and character ar*^ the theme of this sketch, by the name which 
heads it. 

If I had used the phrase "Three-Legged Willie," there would be 
few who VvOuld not at once identify the subject. When he first 
arrived in Texas he was called "Mr. Willie." After James Willie 
came, he and R. M. Williamson were boon companions. James 



144 GOVERNORS WHO HAVE BEEN 

Willie was an older brother of the late Asa Hoxie Willie who was, 
from 1882 to 1888, the most efficient Chief Justice of the Supreme 
Court of Texas. James W^illie at one time, was Attorney General 
of the State, and was the author of the Criminal Code and Code of 
Criminal Procedure of Texas, which is surpassed by no work 
of the kind in all the range of the literature of the criminal law. 
When a boy about 15 years of age, R. M. Williamson suffered an 
attack of white swelling in his left leg, with the result that the 
leg was bent back from the knee, and from the knee down he had 
a wooden leg. 

That affliction is clearly revealed by an examination of the full 
length portrait of him which hangs in the Senate Chamber of 
Texas. To distinguish him from "Jim Willie" the Mexicans 
called him "Mr. Three-Legged Willie," which sobriquet was 
commonly adopted, and he was so known until his death. Many 
people did not even know that his real name was "W'illiamson." 
I confess that I did not know that fact until many years after 
he had passed away. I do not know with what measure of 
accuracy the portrait referred to portrays the real man, but it 
clearly reveals a dominant, forceful character, and it is sure 
that his "counterfeit" presentment fitly fills a place in the Valhalla 
of Texas heroes . 

Robert M. W^illiamson, though born in Georgia, came to Texas 
from Alabama in 1826. In that day the code duello was recog- 
nized and all differences involving questions of honor were set- 
tled among gentlemen in accordance with its provisions, and on 
the field of honor young Williamson fatally wounded his antag- 
onist, who had committed the one offense, which in that day and 
time, was, and it is to be hoped yet is, unforgivable — that of in- 
dulging in remarks which reflected upon the moral character 
of a young lady. 

Robert M. Williamson was, in a large sense, a fair type of the 
intelligent, resourceful, efficient pioneer, but he was not an 
ordinary pioneer, who was content with a few cattle, and a free 
range, and hunting and fishing opportunities ad libitum, for he 
was in no sense an ordinary man. His vision was broad, and he 
aspired to worthy achievements. 

It may be appropriate to set forth in this connection my views 
concerning the leaders among the early Texans for whose char- 
acters and achievements my admiration is intense. 

There were many remarkable men who came to Texas at a 
very early day — men, who by reason of their courage, intellect 
and force of character, would have left the impress of their per- 
sonality upon any country in any age of the world. Coming as 
they did into a territory covering an area of more than 350,000 
square miles, and with less than one inhabitant to each ten 



AND OTHER PUBLIC MEN OF TEXAS 145 

square miles, they of course ventured into a virgin realm, and 
were pioneers in the fullest and truest sense of that term. 

They knew when they prepared to come that they would be 
compelled to face dangers and undergo hardships, and be com- 
pelled to live among crude surroundings in so far as concerned 
their places of residence and their local environment. They knew 
that the conveniences and comforts of life would be few, and 
that of luxuries there would be none. They knew, too, they 
would have not only to establish homes, but organize a govei n- 
ment. Any man who entertains the view that the men who laid 
the foundations of Texas were rude, reckless, ignorant adven- 
turers, embarking on, so to speak, a pioneering lark, because they 
either thirsted for excitement, or desired to reap profit by ex- 
ploitation of a new land, sadly errs. 

They came to Texas because they were far-seeing men. They 
rightly reasoned that a realm of such marvelous resources was 
destined to be settled speedily and afford homes in the course 
of one or more generations to many millions of people, and the 
splendid, but practical vision that filled their waking dreams 
has become a marvelous reality. We, of this generation, are 
their debtors, as heirs to the heritage which they bequeathed us. 

There are many people who find it hard to believe that as far 
back as 1826 — nearly a century ago — when Judge Williamson 
came to Texas, there were really any men of classical education, 
statesmanlike capacity, oratorical power, or legal ability to be 
found here, or that such men came here until many years later. 
Such people seem unable to associate culture, ability and capacity 
for legislation and organization with virgin forests and tents and 
log cabins and the general crudeness which characterizes all 
pioneer settlements. 

They seem to think that civilization and all the refinements and 
luxuries which wealth make possible are necessary to intellectual 
development, and the production of statesmen, whereas the con- 
trary is true. The enervating influences and habits of modern- 
day society do not call into full play those qualities which make 
for constructive statesmanship. Statesmen who would have re- 
flected honor upon any legislative assembly in the world lived in 
the early days of Texas in log cabins with wives who would 
have graced the courts of kings. 

In rude court houses built of logs, and not infrequently before 
juries who sat on the ground under the shade of forest trees, pio- 
neer Texas lawyers delivered speeches as great in all the ele- 
ments of oratory as are any of those perpetuated in rare volumes 
as the greatest specimens of orators in bygone ages. 

The slightest intelligent reflection cannot fail to show that it 
was impossible for the work wrought in Texas between 1825 and 
1845 to have been the work of any but able, far-seeing, progres- 



146 GOVERNORS WHO HAVE BEEN 

sive, courageous men, who were familiar with the fundamental 
principles of right and justice upon which alone free govern- 
ment can safely rest. 

In the ranks of those who undertook to open to civilization a 
virgin realm covering so vast an area, there was no place for the 
intellectual, physical or moral weakling. It was, if a slang phrase 
be permissible, essentially "a man's job." 

In this connection, I take the liberty to borrow my own lan- 
guage used in an address once delivered by me before a joint ses- 
sion of the legislature of Texas on "Sam Houston: Virginian- 
Tennessean-Texan." "Only such men as I have named could 
have achieved the task which they so successfully accomplished. 
Primeval forests filled with wild beasts and almost limitless 
plains over which bloodthirsty savages roamed in unhampered 
freedom, offered no attraction to small men, or to men who 
lacked in either physical or moral courage. The weak and hesi- 
tant man never pioneers, but waits until his bolder fellows have 
blazed the way and opened the path for the army of progress. 
Such men as I have named were not only courageous men, but 
they were men of education, culture and capacity for participa- 
tion in the affairs of government. They were endowed with the 
elements of leadership, and were so intellectually and morally 
gifted as to be able to leave to posterity a record of achievement 
in the sphere of statesmanship rarely excelled in any age, and 
enduring proof that they were as far-seeing, efficient and patri- 
otic statesmen as ever laid the foundation, shaped the policies, or 
directed the destinies of a new nation." 

Robert M. Williamson made a place here for himself, which 
was peculiarly his own, and kept it to his life's end. Nature had 
endowed him with rare qualities and gifts. He was the personi- 
fication of independence, was courage incarnate, and possessed 
in a pre-eminent measure that "divine afflatus" which is as 
surely the dowry of the orator as it is of the poet; and was given 
the fairly earned title of "the Patrick Henry of Texas." 

He held, before the republic was organized, the position of 
Alcalde, and after the republic came into existence, was one of 
the first district judges and ex-officio a member of the first 
Supreme Court. He lived first in East Texas, later at Old Wash- 
ington, where the Declaration of Texas Independence was signed, 
and died in Wharton, Texas, in 1859. 

The time which, but for his physical infirmity, he would 
doubtless have given in large part to youthful sports, he devoted 
to study, and was in consequence thoroughly familiar with the 
ancient Greek and Latin classics. 

The marvelous expansion of Texas as relates to her judiciary 
cannot be more strikingly shown than by the statement that under 
the Constitution of 1836, the judiciary consisted of a Supreme 



AND OTHER PUBLIC MEN OF TEXAS 147 

Court and not exceeding eight District Courts, with one judge to 
each, and every District Judge was ex-officio a member of the 
Supreme Court, but no judge could sit as a Supreme Judge in any 
case which had been tried before him as District Judge. 

I have been informed that when the judiciary system was first 
organized there were only four judges of the Supreme Court, 
James Collingsworth being Chief Justice. Judge Williamson was 
one of the District Judges, but I am not able to say who the other 
two were. Later, the Chief Justice was T. J. Rusk and Judges 
Hemphill, Mills, Shelby, Jones, Hutchinson, Jack, Morris, Baylor, 
and Ochiltree were members of the court. When Chief Justice 
Rusk retired from the bench John Hemphill became Chief Justice. 

There are now approximately, if not fully, ninety District 
Courts and nine intermediate courts of Civil Appeals, a Supreme 
Court having jurisdiction of only civil cases, a Commission of 
Appeals to assist the Supreme Court, and a Court of Criminal 
Appeals. 

Any man who met the requirements of judicial position in the 
late thirties in East Texas had to possess a rare combination of 
qualities. He had to have ability, integrity and the highest type 
of courage, with all of which Judge Williamson was prodigally 
endowed. 

In those days most lawyers drank more or less, many to excess. 
It was considered by no means unethical for a lawyer at the bar 
to appear in court under the influence of strong drink. I have 
heard it said that on one occasion in a rude frontier court house 
a lawyer who had imbibed far too freely stated a proposition of 
law which did not at all commend itself to Judge Wiliamson; on 
the contrary, he deemed it wholly unsupported by either princi- 
ple or precedent. Such being his conviction, he said in his 
sharp, keen, penetrating tones: "Where do you find any law to 
sustain such a proposition?" The bibulous barrister, reaching 
down to his side, drew out a dirk of prodigious length and driv- 
ing the point in the small pine table behind which he stood, said: 
"Hie!" There's the law!" As quick as a flash, the judge dropped 
a six-shooter across the edge of the judge's stand and said : "Yes, 
and by G — d, here's the Constitution." The organic law prevailed 
on that occasion. Like most, or at least many, men of great 
intellectual endowment and strong convictions, he was inclined 
to be intolerant of opposition, but fought out in the open against 
all opponents, fearing none. 

Very soon after the republic became a state, steps were taken 
to locate and build a penitentiary — a step to which for some rea- 
son Judge Williamson was strongly opposed. If I am correct in 
my recollection, the penitentiary was established at Huntsville in 
1849. 

A very able member of the House from Galveston, who is yet 



148 GOVERNORS WHO HAVE BEEN 

remembered there by the oldest citizens, championed the peniten- 
tiary bill, and had a safe majority in the House with him. The 
nearer Judge Williamson drew to defeat, and the more hopeless 
seemed the cause which he espoused, the fiercer his opposition 
grew, and the peroration of his final assault on the bill is said 
to have been in these words: "Mr. Speaker: If the gentleman is 
so anxious to have a penitentiary, he should be willing to get it 
the easiest and cheapest way possible, and I will point out the way. 
Fence in and cover over Galveston island, a long, low, sandy deso- 
late storm-swept and sea-bound waste, once the abode of Lafitte 
and his pirate band, and now the abiding place of the lordliest set 
of d d scoundrels these blue eyes ever blazed on." 

Judge Williamson was one of the men who signed the first call 
for a convention to be held for the purpose of protesting against 
Mexican rule, and of taking steps to establish the Republic of 
Texas. The Mexican government offered a reward for the cap- 
ture of each of the signers, among whom were Francis Johnson 
and Lorenzo De Zavala. He participated in the opening fight of 
the revolution at Gonzales, and was a captain during the revolu- 
tion and took part in the Battle of San Jacinto, and was one of the 
framers of the Constitution of 1836. 

He held the first court ever held under that Constitution in his 
district, which extended from Washington County to San Augus- 
tine County, and held under the shade of a tree the first court 
ever held in the latter county. From 1840 to 1845, he was a mem- 
ber of the Congress of the Republic. He took part in enacting that 
provision setting apart to every head of a family a homestead, 
which could not be taken for debt, the first statute of the kind 
ever enacted by any legislative body in all the history of the 
world. 

He and his contemporaries and colleagues who directed the 
negotiations for annexation retained for Texas her ownership 
and sovereignty of all her public domain, one-half of which they 
set apart for the purpose of free public education of coming gen- 
erations The message of the then President of the Republic, the 
cultured and scholarly Lamar, upon the subject of education 
was, and yet remains, a literary classic. 

They also provided in terms, which renders any interpreta- 
tion unnecessary, that Texas should never be divided without 
the sovereign consent of her own people — and the mathematics 
of humanity have no calculus to compute the time of the coming 
of the division of Texas, nor will the world ever behold the 
mournful spectacle of the suicide of a sovereign state. 

A son of Judge Williamson, Captain Willie Williamson, named 
for his father's early day friend, James Willie, was a gallant Con- 
federate Captain when he had barely attained his majority, and 
was for many years after the close of the war between the states 



AND OTHER PUBLIC MEN OF TEXAS 149 

a successful commercial traveler. I esteemed it a delightful 
privilege to be able to claim friendship with his noble wife and 
himself. 

His son, J. D. Williamson, a grandson of Judge Williamson, is 
one of the most efficient and successful members of the excep- 
tionably able bar of the city of Waco. 

Find them where you may, and in any sphere of professional 
or b'":^iness activity, the descendants of early Texans have always 
"maae good." Those qualities which make for efficiency, insure 
success and inspire respect are inherited endowments, and rare- 
ly, if ever, has the law of heredity operated with greater cer- 
tainty than in the case of the descendants of the men whose 
names are honorably associated with that of the young republic 
which eventuated into the sovereign state, the imperial common- 
wealth of Texas, which every intelligent man knows is destined 
at some not far distant day to forcefully effect, if indeed it 
does not dominate, control and direct the industrial, commercial, 
economic and political destinies of this, the greatest nation ever 
on the earth. 

LOUIS T. WIGFALL. 

Another East Texas man who left the impress of his intellect 
and courage upon the era in which he lived, was Louis Treze- 
vant Wigfall, a much misunderstood man. 

If I am not mistaken, he lived in Harrison county. He and my 
father were members of the legislature at the same time. He was 
considered by many as a kind of "stormy petrel" in politics, who 
rejoiced in arousing and inflaming public sentiment on the se- 
cession question, and there were those who thought that beyond 
his ability as a stump speaker, he possessed no great degree of 
ability. Such an estimate was grossly erroneous. I have reason 
to know that among the Northern people he was looked upon 
as being one of the most (in their eyes) offensive secessionists. 

That he was a secessionist of the most ardent type there is no 
doubt, but when the die was cast and war came on he went to the 
front with Hood's Brigade. 

I make the statement concerning how he was looked upon in 
the North on the faith of the following incident: 

I resided when beginning the practice of law in Galveston and 
was often the guest in the hospitable home of Hon. Wm. Pitt Bal- 
linger, then the nestor of the Texas Bar, a most estimable and 
delightful man. 

On one occasion the Hon. Samuel Freeman Miller, Justice of the 
Supreme Court of the United States, was a visitor to that home 
with his family for a week or more. 

If I am not mistaken, Judge Miller's first wife was a sister of 
Judge Ballinger — in any event, they were warm personal friends. 
Judge Miller was an intense Republican in political belief, and. 



150 GOVERNORS WHO HAVE BEEN 

using the term "smart" in the sense of intellectual, was one 
of the smartest men I ever met. He was, as all lawyers know, a 
great lawyer and a great judge. He was a physician, I have 
heard until he was 32 years of age, and within fifteen years from 
the time he put aside his pill bags was on the Supreme Bench of 
the United States. 

On one occasion in Judge Ballinger's home they were discussing 
past events, including the war and secession, and finally Judge 
Miller said: "Oh, Ballinger, it is not surprising that you had 
secession and war and all your troubles when you had as lead- 
ers and Senators such blatherskites and demagogues as Wigfall 
and other men of his kind." Judge Ballinger had never been a 
Democrat in political faith, and he was opposed to secession, 
but he was a patriot and stood by his people, and he did not let 
the attack on one of their leaders go unchallenged. It was really 
amusing to hear those two distinguished men quarrel like school- 
boys. Judge Ballinger countered on his guest by saying: "Mil- 
ler, you don't know what you are talking about. If there was one 
man who was essentially not a demagogue that man was Louis 
T. Wigfall. He was an aristocrat of aristocrats, and a patrician 
of patricians. 

"When he was a candidate before the Legislature for United 
States Senator he stood in the hall between the door of the House 
and Senate in company with a friend. As the legislators filed in 
he said to his friend: 'A lot of those fellows are fine specimens 
of legislators to be vested with the power of electing a gentleman 
to the United States Senate.' 

"The friend said : 'Say, Wigfall, you are very indiscreet. Those 
men hold your political fate in their hands.' He replied: 'I don't 
care a d — — n. The fact remains that a whole lot of 'em are 
copperas breeched hayseeds and have no business here.' " 

Every lawyer knows that the members of the Supreme Court of 
the United States have their own standard of judging of the ability 
and distinction of a lawyer, and that is he must have appeared 
before them. "He has never been before us," is a remark they 
frequently make, and the plain implication is therefore he cannot 
be much of a lawyer. Judge Ballinger knew that, so he continued: 
"Furthermore, Miller, you have never had a lawyer before you 
who was the intellectual superior of Louis T. Wigfall, nor one 
better prepared to present an able argument upon any question 
of law." 

Judge Miller seemed much surprised at the statement, and I 
must confess it gave me a new conception of Mr. Wigfall, whom 
I had never known, and never saw but once, and that was a very 
short time before his death in Galveston. 

One incident in the career of Judge Miller presented a striking, 
illustration of the irony of fate. 



AND OTHER PUBLIC MEN OF TEXAS 151 

He was, when appointed a Justice of the Supreme Court of the 
United States, a resident of Iowa, though he was born, I think, in 
Kentucky. He was intensely bitter against secession, and as I 
have said, was the most orthodox of Republicans in political 
faith. 

Many years after he was appointed to the bench there came 
an appeal from a Virginia Federal Court, the case of the United 
State vs. Lee. It involved the title to Arlington, the ancestral 
estate of the Lee family. The question involved was whether title 
had passed to the United Stales by a tax sale. 

In the distribution of records to the several justices, the record 
in the Lee case fell to Judge Miller, and so it came to pass that 
a Republican of Republicans, a Union man the most intense, and 
an appointee of Abraham Lincoln, was called upon to determine 
a matter of profound interest to the eldest son of the great leader 
of the armies of the South in the war in which those who thought 
as did Judge Miller, termed a "rebellion." The appellee, G. W. 
Custis Lee, and had himself been a distinguished officer in the 
"rebel" army. 

It is rare that fate had played such a trick on a public man, 
especially a judge of the most august judicial tribunal in all the 
world. 

It is a pleasure to record that Samuel Freeman Miller rose to the 
demand of the remarkable situation as became a just, brave, up- 
right, and impartial judge. 

The case can be found in U. S. S. C. Rep., Vol. IOC (XVI Otto), 
page 196. 

Judge Miller's opinion will remain through all the years to 
come as a monument to his legal ability, and judicial integrity, 
courage and impartiality. It is alike strange and regrettable that 
Chief Justice Waite and Associate Justice Woods, Bradley and 
Gray dissented — the latter writing the dissenting opinion. 

Every lawyer should read at intervals the opinion of Judge 
Miller. It will strengthen his confidence in the court of last 
resort of this great nation, which has in repeated instances been 
a bulwark of defense for the South against unconstitutional and 
oppressive partisan legislation. 

During Judge Miller's visit Judge Ballinger invited the bar of 
Galveston to meet his guest, and the invitation was gladly ac- 
cepted by a large majority of the bar. 

In those days the "punch bowl" was an indispensable acces- 
sory to the feast, and Judge Ballinger's bowl was filled with a 
most seductive beverage, concocted according to his own recipe, 
called, I believe, "Roman punch," and it had a "punch" in it be- 
yond all doubt. Several members of the bar went home early 
well "soused." About 11 o'clock that courtly gentleman and dis- 
tinguished and able lawyer, the late Major F. Charles Hume, said 



152 GOVERNORS WHO HAVE BEEN 

to Judge Miller: "Well, Judge, can you stand another glass of 
punch?" "Of course I can," Judge Miller replied. "I wouldn't 
give a thrip for a judge who couldn't drink half a dozen lawyers 
under the table." 

A short time before, Major Hume had argued before the Su- 
preme Court of the United States the case of Dexter G. Hitch- 
cock vs. The City of Galveston, in which he appeared for the 
appellant. 

The Judge of the U. S. C. C. who afterward became a Justice 
of the Supreme Court, had sustained a demurrer to Major Hume's 
petition. The judgment was reversed by a court, divided four 
to three, and Judge Miller was one of the minority. 

A short time later, before the same judge who had sustained the 
demurrer Major Hume recovered upon a jury trial, a verdict for 
$112,000, which he collected. 

When they had filled their glasses the Major said: "Judge, 
here's hoping that the next time I come before your court you 
will be right on the law." Judge Miller replied, as he prepared 
to drain his glass: "Here's hoping you will have a better case 
on the law next time." 

The last glass seemed to have no effect upon either, but both 
were steady on their feet, and clear in their heads, though neither 
ever used intoxicants to excess. 

At that hospitable board, in a Southern home, the great Judge, 
an intense northerner and friend of Abraham Lincoln, indulged 
in delightful badinage and exchange of social courtesies, with 
equally as great a lawyer who had fallen on the forefront of the 
fighting, the most desperately wounded man in all the host that 
followed Robert Lee that ever recovered and was able to fight 
again. 

Such a scene would be impossible in any land but this. No 
man can read the opinion of Judge Miller in United States 
vs. Lee without feeling a thrill of admiration for the man who 
penned it. 

When Louis T. Wigfall entered the Senate of the United States 
there were many strong men in that body. It is sufficient to 
prove that statement to mention Jefferson Davis, Robert Toombs, 
Judah P. Benjamin and Andrew Johnson. Mr. Wigfall held his 
own with the best of them. 

I heard my father say that he was in the gallery of the Senate 
in 1860 and heard a tilt beween Mr. Wigfall and Andrew Johnson. 
It took a man of courage to deliberately enter into a senatorial de- 
bate with Andrew Johnson, for he was a power as a debater; but 
Mr. Wigfall, with characteristic courage, and full of the prevail- 
ing Southern sentiment, taunted the great Tennessean in his clos- 
ing remarks by saying: 



AND OTHER PUBLIC MEN OF TEXAS 153 

"Now let the Senator from Tennessee put that in his pipe and 
smoke it," but the taunt provoked no reply. 

Since the foregoing was written I had the good fortune to find 
in the State Library at Austin a copy of that most delightful book 
written by Mrs. D. Giraud Wright of Baltimore, a daughter of 
General Wigfall, entitled, "A Southern Girl in '61," in which I 
found related an incident in the life of General Wigfall which I 
had never heard before, but the record of which richly deserves 
to be perpetuated. 

During the bombardment of Fort Sumpter General Wigfall was 
serving on the staff of General Beauregard, and was stationed on 
Morris Island. When he saw the Fort was in flames and the 
flag staff shot away, he resolved to go to the Fort and persuade 
Major Anderson, the Federal Commander, to desist from further 
resistance. His comrades endeavored to persuade him not to go, 
but he procured a skiff and took three negro oarsmen and a 
cockswain. He had not got far from shore when he was called 
upon to return, and was told that the Federal flag had again been 
raised to the top of the pole, but he refused to go back. He had 
tied his white handkerchief to his sword and was waving it 
aloft. A 32-pound ball struck the water within five yards of his 
boat and was followed by a shell which came near proving fatal 
to all who were in the boat. 

As soon as he reached the wharf he sprang ashore, went round 
to an open porthole, and swung himself from a protruding gun 
to an embrasure. Shells were exploding in the Fort from the 
mortars on Sullivan Island. It took some time to find Major 
Anderson, who asked him: "Whom have I the honor of ad- 
dressing?" The reply was: "Colonel Wigfall of General Beaure- 
gard's staff." When Major Anderson inquired what business 
he had with him. General Wigfall replied: "I have come to state 
that you must strike your colors. Your position is untenable. 
You have defended gallantly. It is madness to persevere in use- 
less resistance; you cannot be reinforced; you have no provi- 
sions; your ammunition is nearly exhausted, and your Fort is 
on fire." Major Anderson asked him on what terms he was to 
surrender, and the reply was "unconditional. General Beaure- 
gard is an officer and a gentleman. He will doubtless grant you 
all the honors of war, but speciali gratia." 

Major Anderson replied that he had done all he could to defend 
the Fort, to which statement General Wigfall assented, but told 
him to haul down his flag. Major Anderson replied that the Con- 
federates were still firing on him. General Wigfall said : "Hoist 
a white flag. If you won't, I will on my own responsibility." 
Just at that time a shell burst in the ground within ten paces of 
where they were standing. Major Anderson invited General Wig- 
fall into a casemate and the white flag was hoisted, the firing 



154 GOVERNORS WHO HAVE BEEN 

ceased, and what is called the "Battle of Fort Sumpter" was over. 
During the whole time that General Wigfall was on the way 
from Morris Island to the Fort he was being fired on because his 
white handkerchief was too small to be seen at the long distance 
amid the smoke and haze of the firing. He not only displayed 
great courage, but a spirit of chivalry towards a gallant foeman. 

WILLIAM B. OCHILTREE. 

Among the able men of East Texas was William B. Ochiltree. 
He was a District Judge at a very early day, and lived, I am 
pretty sure, at Nacogdoches. I never saw him, but my father 
served in the legislature with him, and I have heard him say that 
when the intellectual obtained the mastery over the animal in 
W. B. Ochiltree, he was the ablest man he had ever met. 

My father and Judge Ochiltree were warm personal friends, 
though their personal habits were very different. Judge Ochil- 
tree loved a good drink, or rather drinks, and was fond of the 
great American game, while my father would not enter a saloon 
and did not know one card from another, and was an exem- 
plary churchman. Judge Ochiltree had a large head thickly cov- 
ered with deep red hair. A large lock or bunch hung over his 
brow down close to his eyes, and gave him the sobriquet of 
"Buffalo Head." 

On one occasion my father made a brief speech in favor of 
some pending measure of importance, not expecting the bill to be 
attacked. As soon as he w^as seated. Judge Ochiltree arose and 
assailed the bill with vehemence, and worked himself up to great 
heat in the attack. My father was much surprised, and as soon 
as Judge Ochiltree had seated himself, rose and said: "Mr. 
Speaker, when I first heard the tremendous noise behind me a 
few minutes ago I thought some lordly monarch of the forest 
had emerged from his lair, and threatened destruction to all 
who might be in his path. Imagine my surprise, upon turning 
around, to see that the source of all the uproar was a contempti- 
ble "bull buffalo." 

As my father took his seat. Judge Ochiltree leaned over and 
said: "I'll get even with you for that if it takes seven years," 
but he never "got even" or tried to, and the friendship between 
the two was never interrupted. 

As an illustration of the great difference between the habits 
and indulgences of that day and this, an incident my father used 
to relate, which was first made known by Judge Ochiltree, is 
very striking. It involved the father and the son, and the latter 
looked upon it as indicating the precocious brightness of the 
latter. 

They were playing poker in the same room at different tables. 



AND OTHER PUBLIC MEN OF TEXAS 155 

The son came over to the father to borrow some money. The 
old man said: "What has become of your money? You had a 
good pile a while ago." Tom replied: "I loaned it to a friend." 
The old man said: "Well, here's enough for a stake, and I give 
you with it some advice which I want you to act on hereafter: 
Never lend money to a gambler." Tom assured him he would keep 
the advice in mind. In the course of a short while luck ran 
against the old gentleman and wiped out his pile, and he went to 
Tom to borrow a stake. Tom was about 20 years old at the time. 
He said: "Father, I would be glad to oblige you, but the best 
friend I've got in the world advised me only a little while ago 
never to lend money to a gambler, and I promised him I would 
not, so I must refuse you a loan" — and he did. 

The old man thought the joke so good that he had to tell it. 

Such an incident would be impossible now, except at the peril 
of the penitentiary for the man who owned the building, and 
the man who kept the gambling house. 

Some poker playing goes on, of course, but every effort is made 
to conceal it, and no man who notoriously gambled could be 
elected to the legislature. 

As I now recall, Tom Ochiltree was Clerk or Assistant Clerk of 
the House, and wanted to practice law, but not having attained 
his majority, it was necessary to remove his disabilities of mi- 
nority. There was no statute for the purpose then, as there is 
now, and it took an Act of the Legislature to do what was neces- 
sary in the aspiring young man's case. The author of the bill 
moved that it be taken up out of its usual order, and be passed 
under suspension of the rules. 

One of the members of the House was Hon. Thomas J. Jennings 
who was Attorney General of Texas at one time. He was a dig- 
nified, serious kind of a man, and rose and said: "Mr. Speaker, 
I understand the bill will operate to remove the disability of 
minority of Thomas P. Ochiltree, and thereby he will be able to 
receive a license as a lawyer — in other words, will by suspen- 
sion of the rules, be elevated to the dignity of a member of the 
bar. That being true, I shall cheerfully support the bill, because 
it provides for that which is both necessary and appropriate. 

"I was for ten years a law partner of the young man's father 
and have known the young man almost from his birth, and I 
know of no young man more deserving of elevation by suspension 
than is he." The bill passed. 

The son was far more famous than the father. I knew him 
well. Thomas Peck Ochiltree was a remarkable man. He left 
a reputation, or perhaps a better phrase would be, a notoriety, 
in one regard that was of course neither desirable or creditable, 
but now when it little recks him whether he be praised or blamed, 
it gives me pleasure to say that I believe that he was often 



156 GOVERNORS WHO HAVE BEEN 

charged with failing to conform his statements to the facts, when 
in reality he was telling the truth. 

He was accustomed to speak with pride of his services in the 
Confederate Army, and many people believed all his statements 
were purely imaginative. 

There is, however, no doubt that he did render efficient and 
courageous service, and that his commanding officer on whose 
staff he served, repeatedly in his reports bore witness to his gal- 
lantry. I have heard the reports read. If any average man in 
Texas had been told by Tom Ochiltree that he went to Europe in 
the diplomatic service of the government, and carried an auto- 
graph letter from President Grant, the statement would have been 
looked upon as an absolute fabrication, but it would not have 
been. 

I personally saw and read the autograph letter wholly in Presi- 
dent Grant's handwriting, written on a White House letter head 
and signed with the familiar signature of President Grant. It 
was addressed to the diplomatic representatives of the govern- 
ment of Europe, and stated it would be presented by his friend, 
Major Thomas P. Ochiltree, who went abroad in a diplomatic 
capacity (as I remember, as Inspector of Consulates), and that 
he would be received and treated as befitted the dignity and im- 
portance of his mission, or language to that effect. 

In Europe, where there is such slavish adulation of rank and 
station, such a letter, of course, was, so to speak, an irresistible 
social instrument, wherewith to open the doors of every royal 
court to the bearer. 

The fame and prestige of the writer both as a great soldier and 
as Chief Executive of the greatest republic in the world, justly 
entitled his friend to every honor customarily paid the bearer of 
such credentials. 

After reading the letter, I said: "Major, what pay did you get 
for the services you rendered?" "Ten dollars a day and expen- 
ses," was his answer, I said: "It doesn't strike me that ten dol- 
lars a day is very much pay for the representative of the gov- 
ernment in such a capacity." His reply to, or comment on, my 
remarks was decidedly "Ochiltreeish," if I may coin a word. It 
was: But just think of the expenses-'" 

In the party on the occasion referred to was a gentleman who 
had been desperately wounded in the Confederate Army, and 
Major Ochiltree was very loyal in his feelings to all men of that 
class. The gentleman said: "Say, Tom, come on and let's have 
a glass of beer. (The scene of the meeting was a German Volks- 
fest). You refused to lunch with the Prince of Wales, but you 
won't refuse to take a drink with me." The Major said: "I knew 
the Prince of Wales wasn't inviting me on my own account, but only 
because I was in the American Minister's party at the yacht race. 



AND OTHER PUBLIC MEN OF TEXAS 157 

I had on an engagement to lunch with Captain Freemantle of the 
Coldstream Guards, who came over and stayed with our army 
during the war, and I knew I would have other invitations from 
him, but I never would from the Prince of Wales, and I was 
looking out for the future." 

When the Major returned to the United States he stopped on his 
way to Texas, in New Orleans, and was invited to some very 
fashionable function, perhaps a Mardi Gras ball. The New Or- 
leans gentleman who accompanied him asked permission of the 
beautiful daughter of a rich sugar planter to present his friend, 
"Major Ochiltree, a close friend of President Grant." The young 
lady refused the desired permission, of which, of course, the 
Major had to be advised. His comment was: "What do you think 
of that? I, who have danced the minuet with every princess in 
Europe, am refused an introduction by a sugar biler's daughter." 

He wa.-i appointed United States Marshal for the Eastern Dis- 
trict of Texas by President Grant, and when his term of office 
ended, the accounting officers of the Department of Justice said 
his accounts did not balance — marshals were then paid in fees. 

Of course, most of the work was done and the books were 
kept by his deputies, and it is altogether likely the Major did not 
know anything about the accounts, but the Government insti- 
tuted suit against him and his bondsmen, but it was later dis- 
missed, or perhaps adjusted in some way. 

While it was still on the docket, he ran for sheriff of Galveston 
county, and the matter was brought up on the stump. He pro- 
duced a letter from his two bondsmen to the effect, in substance, 
that they had no doubt that if the Major's claims of offset in the 
way of expenses was allowed, there would be no liability. It 
was explanation and exoneration in a very modified form, but 
when he had read the letter, he said : "Now, you see my bonds- 
men are not worried, and I haven't got any time to fool with the 
law suit. I am leaving it to my bondsmen to do the walking. 
I'm running for sheriff." He then continued, "I have proved to 
you that I did my full duty as a Confederate soldier, but they 
cuss me because I didn't stay here in the South in reconstruction 
times. I couldn't make a living here, and I had a chance to go 
to Europe, and I didn't see any reason why I should starve here 
when I could eat pate foie gras and drink champagne in Paris, 
and I went." 

In 1882 he ran for Congress as a Republican in the Galveston 
District which then took in Laredo, and defeated Colonel George 
P. Finlay of Galveston and served one term in Congress. 

He told me during the campaign: "Ain't I in hard luck? The 
Bishop of the Catholic Church on the Laredo section is my old 
school teacher, and I am a Catholic, and of course he won't do 



158 GOVERNORS WHO HAVE BEEN 

anything for me," and he winked his cocked eye, and indicated 
that he felt safe, and he proved to be. 

I have heard that the late John W. Mackay, shortly before his 
death, put the Major in the way of making in some kind of stock 
speculation a very considerable sum of money, enough to keep 
him in comfort the rest of his days, and perhaps leave a small 
legacy to his worthy sisters. 

It sounds like it may have been true. I knew one man in Texas 
who, I was told, "grub-staked" John W. Mackay when he was a 
miner in Nevada or California, and that many years later the 
Texas man was threatened with financial ruin unless he could 
get temporary relief, and he appealed to Mr. Mackey for help. 

As quick as the wire reached him, and another wire could 
reach New York, Mr. Mackay placed a hundred thousand dollars 
to his friend's credit in that city. 

Mr. Mackey was a very rich Irishman, and generosity and 
gratitude are characteristics of the Irish race. 

I have often heard the story told that when "Major Tom" 
started out to practice law he put up his sign as follows: 
"Thomas P. Ochiltree & Father, Attorneys-at-Law," but I had 
grave doubts of the truth of the statement, and was inclined to 
the belief that it was one of those apocryphal stories which often 
become associated with the names of unique and interesting 
characters, such as Thomas Peck Ochiltree certaintly was, but 
since the preceding parts of this sketch were written, the story 
has been fully authenticated. 

Very recently an esteemed friend in Houston who knew the 
Major as well as I did, told me he asked him about it. He told 
me that he said: "Tom, I understand that when you had ob- 
tained license to practice law, your father expressed to you the 
pride he felt at the examination you stood, and said he would 
take you into partnership, and that while he was gone on the 
circuit you might put up a sign for the firm, and that when he 
got back, you had a sign in gold letters a foot long, 'Thomas P. 
Ochiltree & Father, Attorneys-at-Law.'" The Major said: "There 
were no gold letters, but I did sure put up the sign reading that 
way." 

The same friend told me also of the following incident as oc- 
curring within his knowledge, and I am sure there is no doubt 
of its truth substantially as I shall state it. After he had left 
the presidential office, General Grant visited Galveston, and elab- 
orate preparations were made to receive him in a befitting man- 
ner. 

A committee of reception composed of the oldest and best 
known citizens was named to receive the eminent guest, then 
perhaps the most distinguished man in all the world. Major Tom 
had been appointed United States Marshal for the then Eastern 



AND OTHER PUBLIC MEN OF TEXAS 159 

District of Texas by President Grant, and any Southern man who 
accepted any position under a Republican administration in 
those days of "reconstruction" at once became persona non grata 
with every orthodox Southern Democrat. This feeling found 
expression in the rigid exclusion of Major Tom from every com- 
mittee, and from all participation in the reception and enter- 
tainment ceremonies, which action called forth no complaint at 
his hands, and he did not intrude himself upon the committee 
or the distinguished guest. 

The only depot in Galveston at the time was an unsightly "shack" 
in the western part of the city, and the reception committee duly 
identified by proper badges lined up to receive General Grant, 
but Major Tom was not in the line. He stood afar off out beyond 
the end of the double column. When General Grant had nearly 
reached his carriage — there were no such things as autos in those 
days — his eyes lighted on the radiant red of the Major's hair and 
mustache, and he called out, "Why h-e-1-l-o Tom! How are you? 
I am glad to see you," and grasping the Major's hand continued, 
"Come right along and ride with me. I want to talk to you." The 
Major in duty bound accepted the invitation, which was equivalent 
to a command, and so it was that the seat at the right hand of 
the great man, whom Kings had been proud to do honor to, 
was occupied by the Major instead of by the distinguished local 
citizen to whom the committee had assigned it. The stone which 
the committee had rejected the same became the head of the 
corner. He whom it was sought to humble was highly exalted. 

When the Major was in Paris he was actor in a little drama 
which caused vast wonderment to the French. Many readers will 
remember that about fifty years ago the rage of the Parisian stage 
was the actress Adah Isaacs Menken, who won great fame by 
playing "Mazeppa," in which drama she rode, in as near a state 
of nudity as the most liberal limit of propriety would permit, 
a wild horse, to which she was strapped. The emotional and 
mercurial French patrons of the theatre went wild over the 
performance and sought every occasion to crown the beautiful 
woman with wreaths of roses and laurel. She was the "toast 
and talk of the town." 

Major Tom was standing on the street in Paris one day in 
company with a friend, when the latter suddenly exclaimed, — 
"Yonder comes Adah Isaacs Menken in her carriage." The people 
were acclaiming her on every side, and when the Major turned 
and saw her he said, "I am glad to see her, I'll just go out and 
stop her carriage and get in and ride down the avenue." The 
French would have been no more astounded had it been Napoleon 
HI or his Empress in the carriage, and the Major had made such 
a proposal, so the party he was talking with said, "Why you 
cannot do it, and dare not attempt it." The Major said, "I'll bet 



160 GOVERNORS WHO HAVE BEEN 

you 50 francs that I will not only get into the carriage with her, 
but that I will do so at her invitation." 

The friend promptly took the bet, and the Major sauntered out 
into the street and met the carriage, and the beautiful woman. 
The admired and feted queen of the hour recognized him and 
said, "Say, Tom, come get in and ride with me. I'll be so glad 
to have you," and the Major promptly entered the carriage and 
took his seat by the side of the great actress. The skeptical friend 
not only lost 50 francs, but like thousands of others was over- 
whelmed with astonishment. The explanation of the result of 
seemingly so remarkable a venture is very simple. Adah Isaacs 
Menken was born in East Texas and resided there, and she and 
the Major had been schoolmates and friends from childhood, and 
were "Adah" and "Tom" to each other. 

THOMAS J. JENNINGS. 

The name of Thomas J. Jennings appears as that of the Attorney 
General of Texas in the reports from Vol. 9 to Vol. 17, both 
inclusive. 

He was a resident of Nacogdoches County and served in ihe 
House with my father. 

One of his sons, Thomas R. Jennings, retired from the practice 
of the law on account of almost total deafness, and as I recall, 
died in Harris County some years ago. 

Another son, Hon. Hyde Jennings, was a member of the bar of 
Fort Worth at the time of his death. I never knew him, but always 
heard him spoken of in terms of respect both as a lawyer and 
a man . 

I have the impression that General Jennings was very stately 
and dignified in bearing, — possibly the term "pompous" might not 
inaccurately be applied to him. His manner was wholly natural 
— not affected. 

It is said that he magnified his office to such an extent that when 
even an old friend would come in he would rise and in the most 
stately and formal manner ask, "Have you business with the 
Attorney General?" He must have so I'eceived Dr. Ashbel Smith 
in that way on one occasion, as I have heard my father say thai 
he met Dr. Smith one day and the old fellow said, "Kettr/11, 
Jennings is an atheist." My father said, "I have never heard so, — 
you must be mistaken." "No, Kettrzll, I am not. He is an atheist, 
because he acknowledges no higher power than Thomas J, 
Jennings." 

Notwithstanding his somewhat exaggerated official dignity, he 
was an able and upright man who proved equal to every demand, 
and rendered Texas valuable and honest service. 



AND OTHER PUBLIC MEN OF TEXAS 161 

HORACE CHILTON. 

Horace Chilton is another product of East Texas who has done 
his section great credit. His father, Colonel George W. Chilton, 
was, as I recall him, a distinguished-looking man of the blond 
type, a gentleman of the old school. He was a gallant Confederate 
soldier, and was wounded in battle, and practiced law successfully 
after he had returned from the army. I believe he and my father 
served in the House together before the war. 

As I have said before, service in the Legislature in those days 
was considered more of an honor than to go to Congress is now, 
and I seriously doubt whether any delegation Texas has had in 
Congress in the last quarter of a century was equal in intellect 
and legislative ability, taken as a whole, to the same number of 
men, who served in the Legislature of Texas between 1850 and 
1860, and it is no dispargement to any Congressman to make 
this statement. 

If my recollection as to genealogy is correct. Colonel George 
W. Chilton was a nephew of Hon. W. P. Chilton, who was for 
twelve years Chief Justice of the Supreme Court of Alabama. I 
know that his son, Horace Chilton, is called "Cousin" by the 
family of Hon. L. A. Abercrombie, late of Huntsville, whose wife 
was a daughter of Hon. W. P. Chilton, and a most cultured and 
accomplished lady. 

When Hon. Horace Chilton was a candidate for the Senate, after 
his appointment by Governor Hogg to succeed Judge Reagan, I 
interested myself in his behalf. Though I had never been a 
supporter of Governor Hogg, who appointed him, I approved 
highly of the appointment. I took a double buggy and drove 
Senator Chilton over a part of Leon and Madison Counties, and 
to Huntsville, and he delivered several speeches on the trip, one 
at Madisonville. 

I recall one incident on the trip very vividly. Madisonville was 
by no means then the well-built^ attractive town it is now. The 
hotel was a kind of intermittent inn, sometimes open and some- 
times not, and when open by no means inviting either as to bed 
or board, so the "drummers" with their unerring instinct for good 
eating, and the ability to find where it could be had, had beaten 
a path to the private residence of a merchant in the town, and 
he had been almost perforce compelled to make his house a hotel. 

I did not tell the Senator where we would stop, or what we 
would likely get to eat, but we went to the quasi-public house. 
The host was a Russian Jew of generous rotundity, and most 
genial and likable, and his wife was a most excellent woman 
and his daughters very attractive and exemplary young ladies, 
whom I had known almost from their infancy. 

We went into dinner (not lunch) about 12:30 and found what 
I knew we would find, enough wholesome food for forty people, 



162 GOVERNORS WHO HAVE REEN 

instead of for ten, which was about the number at the table. 
After we had eaten to repletion the Senator said, "Judge (I was 
then on the bench in that district), you may call that a dinner. 
I call it a banquet," which, considering the Senator was fresh 
from Washington where opportunity for rich feeding was present 
on every hand, I thought a high compliment to the village hostelry. 

The wife of the host supervised the cooking and was herself 
one of the finest cooks I ever saw. There is not a hotel in Texas 
today, barring none, that ever served such meals as were served 
in that interior hamlet, nor can they serve a meal on finer damask, 
or on a table furnished with handsomer china, or cut glass. 

Such entertainment greatly relieved the monotony of overland 
travel, and repeated speaking, and the quaint humor of the host 
who was a character as unique as he was amusing, was very 
entertaining. He said one day: "Gentlemen, walk in. Maybe you 
find something to eat, I don't know; but I bet you don't find no 
hog meat in this house. My wife is the out-beatenest Jew ever 
you see, and it's all that doggone Jacob business what you don't 
eat hog meat. When 1 go fishing 1 take my American Rible and 
eat bacon, but 1 don't get none here." I said, "Jake, Jacob is not 
to blame. It is the Mosaic law to eat nothing which splits the 
hoof and chews not the cud." "Oh," he said, "Moses and Jacob 
was partners, and it was all business mit Jacob. He took dose 
striped sticks and beat his fadder-in-law out of his catties, and 
then he say, 'Don't you eat no hog meat. Eat all de time cattle 
meat. If he been in the hog business he would say, 'Don't you 
eat no catties, but eat hogs.' It was all business mit Jacob, and 1 
got to pay 35 cents for cow butter to cook mit and can't eat no 
hog meat." The exegesis of my Jew friend might not be accepted 
by theological exegetes as correct, but they cannot justly deny it 
the quality of originality. 

Senator Chilton and I had a very interesting trip, which I have 
often recalled with pleasure. 

His father died, I think, in 1884. I met the son at the Demo- 
cratic State Convention that year in Houston, and he told me he 
had lost his father. His sorrow was then fresh, and evidently he 
felt the blow deeply. I am impressed with the belief that the 
affection between father and son was unusually strong. 

The father lived long enough to see the son achieve that high 
distinction as a lawyer which he has consistently maintained, 
and if he could have been spared to see his son in the position of 
Senator from his native State in the most august parliament in the 
world, his cup of joy would have been full to overflowing. 



AND OTHER PUBLIC MEN OF TEXAS 163 

ROBERT SCOTT LOVETT. 

Another East Texas man who has won for himself a high 
position in the fields of both law and business is Robert Scott 
Lovett. 

He was for a number of years a member of the firm of Baker, 
Botts, Parker & Lovett, but something like sixteen years ago he 
went to New York at the instance of the late Edward H. Harriman, 
who was one of the greatest railroad men in America, which is 
to say, in the world. 

It is a rather remarkable fact, and one most complimentary to 
the firm of which Mr. Lovett was a member in Texas, that his 
former associate, Edwin B. Parker, has recently been called to 
New York in the position of General Attorney for the Texas 
Company. Mr. Parker rendered very valuable service to the 
government during the war, and after the armistice was signed, 
was sent to France as a representative of the government in 
matters which involved hundreds of millions of dollars, and the 
proper management of which demanded both integrity, and a 
very high order of financial and executive ability, and Mr. Parker 
discharged his duties most efficiently. 

Mr. Lovett is now practically the executive head of the entire 
Harriman system of railroads. 

Mr. Harriman was not a wrecker, but a builder and developer, 
and he gave the public assurance that he desired and intended 
that the railroad system which he had built up should be honestly 
managed, when he committed it to the direction of Robert Scott 
Lovett. 

He directs its operations with the same regard for, and observ- 
ance of the obligations of honesty and fair dealing which marks 
his action in all the relations of life. 

He was born in the piney woods about sixty miles north of 
Houston, in what was then Polk, but now San Jacinto County, 
about sixty years ago. His parents were most worthy people, 
but in modest financial circumstances, and he has risen to the 
position he now occupies by sheer force of personal merit, 
without the adventitious aid of any financial, political or social 
"pull." 

I have known him for thirty years, and have known his cultured 
and accomplished wife since she was born. She is a native Texan, 
born in Huntsville. 

If all the men who have been responsible for the management 
of the railroads of the United States during the past fifty years, 
and had been such men as Mr. Lovett, the prejudice against rail- 
roads and the antagonism between them and the people which has 
cost the roads many millions of dollars, would never have been 
developed. 



164 GOVERNORS WHO HAVE BEEN 

The fullest, frankest, and most instructive testimony given before 
the Congressional Committee which in the recent past investi- 
gated the question of railroad finances, and operation, and the 
reciprocal rights and duties of the government, the people, and 
the roads, was that of Mr. Lovett. It was published in pamphlet 
form, and is well worth reading by every man who wants to be 
correctly informed on a great public question. 

Mr. Lovett is a director in the Western Union Telegraph Com- 
pany and in other large corporations, and so long as he holds 
those positions, the assurance will continue that no illegal or 
improper action will be "put over" with his knowledge, and most 
certainly not with his co-operation. 

The place of Mr. Lovett in the firm was taken by Judge Garwood 
— a fact most complimentary to both gentlemen. 

MORRIS SHEPPARD. 

One East Texas, or rather Northeast Texas man, has achieved 
phenomenal success in politics. He comes from the Northeastern 
part of the State, but has always breathed the balsamic odor of 
the pines, which seems to have the magic power to transmute 
almost any average man into a successful politician. 

Senator Sheppard's father was for many years a most capable 
district judge, and passed from that position to a seat in Congress. 

He of course left the bench of the district court impoverished, 
as has every man who served at a salary of $2,500, and could 
accumulate no money in Congress, — hence I assume left his family 
but little heritage, except a stainless record and an honored name. 
Upon his death a number of able men offered for the place, but 
his son, Morris Sheppard, then as I recall less than thirty years 
old, swept the field. 

After serving several years in Congress he off'ered for the Senate. 
Older men halted and hesitated, but Morris Sheppard went boldly 
out after the place, and won over Hon. J. F. Wolters, a most 
worthy and capable man, who has since proved his readiness and 
ability to render most efficient public service. 

He had, however, always been a consistent and I have no doubt 
conscientious anti-prohibitionistj and the prohibition sentiment at 
that time was by no means as pronounced and intense as it 
became later, — so Mr. Sheppard made a brave venture for so 
young a man. He has since been returned to the Senate without 
opposition. 

W^hether the people agree wholly with the views of any man or 
not, they always admire consistency, persistency, and pluck. The 
man who stands by his convictions, whether they be popular or 
unpopular, always commands the respect of the people. 

I saw somewhere recently that one of the brother Senators of 
Senator Sheppard, a Republican, paid Senator Sheppard in open 



AND OTHER PUBLIC MEN OF TEXAS 165 

Senate an eloquent tribute for his fidelity to the cause of prohi- 
bition, and the tribute was well deserved. 

My acquaintance with Senator Sheppard is very slight, but I 
know him to be an indefatigable worker, and he has demonstrated 
his unswerving fidelity to conviction. 

His first election to Congress resulted doubtless in large part 
from very commendable sentiment, and from a desire to pay 
tribute to his father's memory, but the North Texas gentlemen 
who offered might have known that a capable "piney woods" boy, 
with good character, and fluent in speech, was invincible in 
"the sticks." 

JOHN HENRY KIRBY 

It was a hot day in June, 1879. The corn was in tassel and old 
Sol's penetrating rays distributed the fires of summer. There 
was not a breath of air. Not a blade of the corn trembled, except 
from the shimmering heat. 

A stalwart youth of about eighteen, and a vigorous, well-pre- 
served, broad-shouldered man of fifty-eight, were plowing round 
for round in the corn field. The perspiration rolled from their 
horses, whose nostrils were distended and their sides tremble'd 
with every respiration from the intense heat. Not a dry thread 
was on man or youth, but they persevered in their tasks. 

It could be seen that they were father and son, and on occasions, 
to relieve the misery of their horses, they would drive their 
plows under the shade of the trees that skirted the corn field, 
giving their animals a brief respite. On one of these occasions 
the youth, who with a wooden paddle was cleaning his sweep 
while they halted in their work, addressed the other man thus: 

"Father, I have been thinking for some time I would make you 
a proposition and I will submit it now. All of the children are 
married and gone away except myself, and if you will release me 
from the farm and help me to go to school for a time I will 
make a contract with you that I will thereafter support you and 
mother. With a little education I can earn more than both of 
us are earning on this farm, for at the end of every year when 
our debts are paid we have nothing left. You will remember 
what Mr. Cooper said to you last year about sending me to 
school." 

Silence prevailed for a time while the elder man seemed to be 
turning over in his mind the seriousness of his son's offer. Then 
he answered: 

"Son, I have been thinking over that very matter and I remem- 
ber what Bronson said. Our neighbor, Jim Priest, has gone to 
Woodville to see if he can employ Frank Crow, who is reputed 
to be the best teacher in the county, and if he succeeds then we 
are going to fit up the old Buxton house as a school house and I 



166 GOVERNORS WHO HAVE BEEN 



will release you from farm work for the balance of this year 
so you can attend continuously, but I will not accept your offer 
to maintain me and your mother. I can do that. What I want to 
do is to give you every chance that can be secured through any 
kind of sacrifice which both your mother and I are ready and 
willing to make." 

There was joy in the boy's heart. Within two days it was an- 
nounced that the services of Professor Crow had been secured, 
and then the neighbors met at the old Buxton place, which was 
an old log house on an abandoned farm, and fitted it up with 
benches and crude writing desks, and in its one big room Pro- 
fessor Crow, in due time, took up his school. 

This youth attended regularly every day and applied himself 
with such diligence and manifested such capacity that he soon 
won not only the interest but the affectionate regard of Professor 
Crow. When the six months were ended Professor Crow im- 
portuned the father to let the youth go home with him to Wood- 
ville, where Crow's mother would board him on credit for a 
further scholastic period. The Professor was successful. The 
youth accompanied him to Woodville, the county seat, in January, 
1880. He entered high school there, the principal of which was 
a scholarly man. Prof. W, F. Gibson. The youth attended dili- 
gently for a period of six months. 

Beginning under Professor Crow in July, 1879, with prmiary 
lessons, taking grammar and first lessons in composition, he came 
out of high school at Woodville in June the following year, having 
mastered what would now be substantially a four years' course 
in our schools and colleges, for he had not only mastered all of 
the arithmetics, algebra, geometry, trigonometry, conic sections 
and differential calculus in the way of mathematics, but he had 
taken history, English literature, rhetoric, mental and moral phil- 
osophy, and all the other branches of that period, including the 
dead languages, and had read Caesar, Sallust, Virgil and Cicero 
in Latin and was well advanced in Greek. 

Immediately following the close of the term at Woodville, in 
June, 1880, he secured a position as a school teacher and had 
soon saved enough money to pay Mrs. Crow his board bill and to 
pay a store account at Woodville for which his friend, S. B. 
Cooper, stood security. 

This boy, with this limited opportunity and from this humble 
beginning, is now no other than John Henry Kirby, President of 
the great Kirby Lumber Company, and the directing mind in 
numerous other business enterprises. 

It is manifest from the foregoing that any list of East Texas 
men which did not include John Henry Kirby would be inex- 
cusably incomplete, for he is essentially an East Texan, and does 
credit to that remarkable realm. 



AND OTHER PUBLIC MEN OF TEXAS 167 

He was born and reared in the midst of the primeval forests, 
where his worthy parents, typical representatives of the old 
school of Texas pioneers, industrious, intelligent, honest and 
God-fearing, settled at a very early day. 

In, if I mistake not, 1883, John Henry Kirby was calendar clerk 
of the Senate of Texas at the salary of $5.00 a day, and now he 
is the official and executive head of one of the largest, if not the 
largest of the lumber companies of Texas, which company bears 
his name. 

There is no truer adage in Scripture, nor one which is oftener 
fulfilled, than "where there is no vision the people perish." 

John Henry Kirby had a luminously clear vision of the possi- 
bilities of the development of the lumber industry of East Texas, 
and what was equally important, had the ability to inspire with 
enthusiasm and confidence like his own, northern and eastern 
capitalists. By sheer force of his energy, coupled with an un- 
swerving faith in the enterprise he had undertaken, he drove a 
standard-track railroad line through a sparsely settled territory 
of virgin pine till he reached its very heart and center, and soon 
the hum of the saw was heard at many different mills, the prod- 
ucts of which are carried to many foreign lands, besides supplying 
millions of feet of yellow pine lumber to Texas consumers. 

Such success is never acquired by chance or by accident. It 
is the fruit of keen foresight, business ability of the first order, 
and rare executive capacity. It has been said that there is no 
business in which the profits can be so easily shown on paper, 
yet are so difficult to develop into actual money, and the state- 
ment has been verified by long experience. 

The reason for Mr. Kirby's success is, that he attends to his 
business and works at the task he has set for himself. He is 
probably seen less frequently on the streets of his home city, 
Houston, than is any business man of his class. While his palatial 
home and my humble one are only about a mile apart, I do not 
recall that I have seen him in two years. 

The interests for the successful direction of which he is largely 
responsible are of great magnitude and he is always "on the job," 
yet he finds time to give attention to public affairs. 

He was at the front in the inauguration of the movement to 
build a Y. M. C. A. building in Houston, and contributed to pur- 
chase the property and erect the building as much as any other 
single individual. I have heard it stated on good authority that 
he subscribed $4,000 towards the erection of the Confederate 
monument to Hood's Brigade, which stands in the Capitol grounds 
at Austin, and before it was paid, or about February, 1904, the 
Kirby Limiber Company went into the hands of a receiver. When 
that fact was announced the president of the Hood's Brigade 
Association wrote or wired him that in view of the embarrassment 



168 GOVERNORS WHO HAVE BEEN 

of his company he would be released from his pledge. He replied^ 
as I was informed, by wire that he did not desire to be released^ 
but on the contrary wouia increase his subscription to $5,000. 
It was his personal gift, and not that of the legal entity, the Kirby 
Lumber Company, and he made good his word. 

Twenty-tive years or more after he was a clerk in the Senate 
of Texas he was drafted by the people of Harris County into 
service as a member of the House, a position he filled most effi- 
ciently. That was his first and last adventure into the field of 
politics. 

That part of East Texas from Beaumont north to Longview is 
largely his debtor, as the original lines of railway for the con- 
struction of which he was responsible, have been merged into 
part of the G. C. & S. F. systeiu, which serves a large area and 
affords the conveyance of tiansportation to many thousands ot 
the very best citizens of Texas. 

THE TODD FAMILY. 

No name is more closely or more honorably identified with East 
Texas than that of Todd. 

Hon. \Vm. S. Todd was from 1850 to 1862 judge of the old eighth 
judicial district, the dimensions of which can be at least in some 
measure realized, when it is said that it extended from Cooke 
County to Cass County, which means that it covered an area 
larger than that of many of the States of the Union. 

He was not only an incorrnptibly honest and fearless judge, but 
was also a very able one. I have been reliably informed that he 
was reversed less frequently than any judge of his day and time. 

A judge may be honest and fearless but possess but limited 
knowledge of the law, but integrity and courage cannot supply 
the lack of legal learning. A sense of honesty and justice of 
course enables a judge to see the abstract right of a case, but as 
Judge Roberts points out in his great opinion on rehearing in 
Duncan vs. Magette in 25 Texas, already referred to, law is not 
administered according to abstract right, but in accordance with 
fixed rules of law and evidence, and a judge who is not grounded 
in these, but relies on his personal conception of abstract justice 
is often a blunderer, and his administration of the law from the 
bench becomes a judicial tragedy. 

The reports are filled with the record of judicial errors made 
in this day and time, when text books on nearly every subject 
and reports up to almost the very day of trial are accessible ta 
the judges, yet fifty to sixty years ago judges like Wm. S. Todd, 
Peter W. Gray, James H. Bell and Alexander W. Terrell conducted 
trials involving the most intricate and difficult questions of both 
civil and criminal law, and in doing so erred less frequently in 
oroportion to the number of cases tried than I did thirty to forty 



AND OTHER PUBLIC MEN OF TEXAS 169 

years later, though for the larger part of the time they had access 
to very limited libraries, and often to practically none at all. 

The reason for the correctness of their rulings was that they 
were not case lawyers, but were deeply grounded in the basic 
fundamental principles of law. 

Judge Todd was a member of the secession convention, and 
voted for the ordinance of secession. He was a Southern gentle- 
man from crown to toe, which means he was the finest type of 
man ever fashioned by the hand of God. 

When the tocsin of war sounded his son, George T. Todd, 
responded to the call of his native South, and went out as Captain 
of the first company which left Texas for the battlefields of 
Virginia. His company was Company A, first regiment of Hood's 
Texas Brigade, and fought in every battle from Bethel to Appo- 
mattox, and Captain Todd stayed at the post of duty till the stars 
and bars sank 'mid the wail of a people's agony of sorrow, behind 
the historic hills of Appomattox. 

Returning to his home ragged and penniless, he entered upon 
the practice of the law and rose to the front rank at the bar. He 
lived at Jefferson for many years, and died there in the com- 
paratively recent past at the age of seventy-four. He was that man- 
ner of man that was equal to every situation. Whether resting 
'neath fortune's favor or her frowns, he was the same genial, 
courageous man. He was possessed of the saving sense of humor 
— a blessed endowment when it does not degenerate into buffoon- 
ery, which it never did in the case of Captain Todd. 

A younger son of Judge Todd, Hon. Chas. S. Todd, has been 
for many years a successful practitioner at the bar of Texarkana. 
By the well nigh inerrant law of heredity. Judge Todd transmitted 
to his sons those instinctive impulses and perceptions, and those 
standards of conduct which are the indefinable, but unmistakable 
hall-mark of the gentleman, and the name of Todd in East Texas 
is the synonym of genuine merit and true manhood. 

I never knew or saw Judge Todd, but I esteem it a privilege 
to have known Captain Todd, and to have had his friendship, and 
I hold in high esteem Chas. S. Todd and his charming wife, the 
latter of whom I have had the delightful privilege of having as 
a guest at my humble board. 



170 GOV ERNORS WHO HAVE BEEN 

CHAPTER XXV. 
THE JUDICIARY OF TEXAS. 

"Justice is immutable, 
Immaculate and immortal! — and though all 
The guilty globe should blaze, she will spring up 
Through the fire, and soar above the crackling pile 
AVith not a downy feather ruffled by 
Its fierceness." 

— Virginias — 2nd Scene, Last Act. 

No State has been more fortunate in having upon the bench of 
its court of last resort men both of ability and high character 
than has Texas. 

It has been now nearly three-quarters of a century since the 
Supreme Court held its first session, and judges have come and 
gone, and the changes have been numerous, but the high standard 
set by the great judicial triumvirate which first comprised the 
court has been consistently maintained. 

Within that time there have been charges of corruption made 
against judges in other states, and judges have been impeached 
for prostitution of their high positions to unworthy ends, but 
there has never been a judge upon the Supreme Court of Texas 
who could not have truly said in the words of the great Wolsey, 
"I have kept my robes and my integrity stainless unto heaven." 

When I use the term, "Supreme Court of Texas," I mean that 
court as it was constituted from 1846 till 1867, when the judges 
who were elected in 1866 were removed from office by arbitrary 
military power, and that court as it has been constituted from 
February, 1874, until this time, and as it is now constituted. 

In the interim from September, 1867, to February, 1874, there 
was, of course, a tribunal composed part of the time of five men 
and part of the time of three men, which was called flie "Supreme 
Court of Texas," and which by sheer force of circumstances, over 
which the people of Texas had no control, functioned as the 
"Supreme Court of Texas," and the people and the bar were 
obliged to submit to it all legal controversies for arbitrament; 
but it is not that tribunal to which I refer as the "Supreme Court 
of Texas." 

I recall reading at one time an opinion by Hon. George F. Moore, 
in which he was dealing with an opinion delivered by the last 
named tribunal (I believe, on motion for rehearing), and in the 
course of his opinion he said, in substance, that whatever measure 
of legal ability, or personal merit, the members of that tribunal 
may have possessed, the Supreme Court of which he was a 
member did not feel bound to accept its decisions as law, and 
it would not hesitate to hold contrary to what that tribunal had 



AND OTHER PUBLIC MEN OF TEXAS 171 

held; and proceeded to point out why the conclusion it had 
reached in the case he had in hand, was palpably erroneous. 

Some of the members of that tribunal were aliens, interlopers 
and strangers; and others were men who forsook their country 
in her hour of peril, and were able to take such an oath as not 
one Southern man in a thousand could, or would, take, — so I 
am in hearty accord with Judge Moore. 

I did not feel, however, that I would be justified in ignoring the 
fact of the actual existence of such tribunal; which, however 
unconstitutional and illegal may have been its origin and exist- 
ence, was at least a de facto court, as many a lawyer and many 
a litigant found out to his sorrow. With possibly one exception, 
there never was an hour in the history of Texas when either one 
of the men who from time to time composed that tribunal would 
have had, under normal conditions, any more chance of obtaining, 
either by election or appointment, a seat on the bench of the 
Supreme Court of Texas, than he would have had to be vested 
with the robe and scepter of a king. 

At one time when the tribunal was in session in Austin, a 
gentleman who before the Civil War had won high distinction 
as a lawyer, and who was Confederate States Judge of the Eastern 
District of Texas, entered the court room, and after gazing 
earnestly for a considerable length of time upon the aggregation 
of military-made Supreme Judges (?), said: "I had never even 
dreamed that I should live to see the time come when a man, 
who when I knew him at the bar was the most pestiferous petti- 
fogger in all East Texas, would occupy the seat once adorned by 
John Hemphill and later by Royall T. Wheeler. Surely my State 
has fallen upon evil times." 

I remember it was said in those days that when the records 
were distributed to the several members of that tribunal, each one 
wrote his own opinion, and that it was deemed a breach of 
judicial comity, or courtesy, for any one of the five to object to 
the conclusion reached by another one. 

I was not at the bar in those days, but I recall distinctly that 
it was stated as a fact, that one of the five wrote an opinion in a 
case, and laid the record aside. Another one of the five, seeing 
no opinion in the files, took the record and wrote an opinion of 
his own, holding directly contrary to what the first man had held; 
and both opinions were filed in the archives of the court. When 
delivered to the clerk to be recorded, or perhaps to the reporter, 
the contradiction and confiict was discovered, and in some way 
adjusted. Surely the baleful tree of "reconstruction" bore bitter 
and destructive fruit. 

I will likely be safe in saying that not one lawyer in ten in Texas 
has even an approximately correct idea of the times when the 
several Supreme Judges held places on the Supreme Bench, nor 



172 GOVERNORS WHO HAVE BEEN 

when the various changes took place. I am sure I had not, until 
I took the pains to investigate the records; for while 1 have 
written upon other themes almost wholly from memory, I was 
unwilling to trust entirely to memory as to the judiciary. 

It may prove interesting to set forth the facts regarding judicial 
tenures and changes. 

All lawyers, so far as I know, agree that the first court was 
composed of three great lawyers. They were men of wholly 
different order of mind, but all of them were men of vigorous 
intellect. 

It is conceded, so far as I have ever heard, that Chief Justice 
Hemphill was the most profoundly learned man of the three. 
Judge Lipscomb enjoyed the rather unusual distinction of having 
been, before he came to Texas^ a Judge of the Supreme Court 
of Alabama. 

His grandson, a most useful citizen and worthy member of the 
bar of Texas, holds, or at least did hold, within the recent past, 
a judicial position in the county of his residence. 

The first Chief Justice resigned after thirteen years of service 
to take a seat in the United States Senate. Judge Lipscomb died 
December 8, 1856. The last opinion written by him was that in 
the case of Jacobs vs. Arnold, which appears in volume 17 of the 
Texas Reports, page 652. 

It appears from an examination of volume 18 that for a con- 
siderable time, how long I do not know. Judges Hemphill and 
"Wheeler constituted the court. Hon. O. M. Roberts was appointed 
to succeed Judge Lipscomb, and his name appears for the first 
time as a member of the court, in volume 19. 

Judge Wheeler was a man of nervous temperament, and inclined 
to pessimism and despondency, and was called upon to deal with 
questions of conflict between the military power of the Confed- 
erate Government and the rights of citizens, which it was under- 
stood greatly troubled him. 

His salary, which was small, was paid in Confederate money, 
and proved wholly inadequate to meet the necessities of his 
family, to which he was passionately devoted. He was a man 
of spotless purity in private and public life, but his nature was 
unattuned to the excitement, and strife, and bitterness born of 
war, and the thickly gathering troubles of the present seemed 
to him to presage for him and his a future filled with hardships, 
and under the combination of troubles which beset him, his 
magnificent mind gave way, reason toppled from her throne, 
and in a state of total mental irresponsibility he died by his 
own hand. 

The brief sketch of his life and services from the gifted pen 
of Hon. Chas. S. West, who in later years was a Justice of the 
Supreme Court of Texas, which can be found in volume 27 of the 



AND OTHER PUBLIC MEN OF TEXAS 173 

Texas Reports, is a beautiful and deserved tribute to a great jurist. 

The last opinion delivered by Judge Wheeler, so far as I have 
been able to discover, was in the case of Hanks vs. Pickett, 27 
Texas, page 97. 

Upon the resignation of Chief Justice Hemphill, Judge Wheeler 
became Chief Justice, and he and Judge Roberts appear to have 
constituted the court until the election of Hon. James H. Bell as 
Associ"&te Justice. 

I have heard a very interesting story concerning the campaign 
which resulted in the election of Judge Bell. His opponent, I have 
been told, was Constantine W. Buckley, who was for a number 
of years Judge of a district in the southern part of the State, and 
who was an able lawyer. He was, I have understood, the Demo- 
cratic nominee. 

Judge Bell had never been a Democrat, and never was after- 
wards. His political views were not in harmony with those of 
the majority of the people of Texas, but he had as District Judge 
displayed conspicuous ability. The Galveston News was at that 
time an even more influential journal than it deservedly is now, 
and, as I remember, from what I have heard, the late Wm. Pitt 
Ballinger was the legal adviser and the close friend of its then 
owner, Willard Richardson. 

He had never aligned himself with the Democratic party, and 
he had the very proper conception that no man's political views 
had any just or proper relevancy to his fitness for judicial 
position. 

He knew Judge Bell, and had practiced before him, and esteemed 
him highly as a judge. He was given free use of the columns of 
the News, even on the editorial page, and warmly espoused the 
candidacy of Judge Bell, with the result that the independent 
candidate defeated the nominee. 

Judge Bell was a man of very high character and became a 
Republican after the war, but neither held nor sought office, and 
lived and died in the Republican faith. 

I feel sure every lawyer who has read any material number of 
his opinions has been favorably impressed by their clearness, 
directness and brevity, and been struck by the frequency of the 
statement in the very beginning of his opinions, to the effect that 
he was of the opinion that the case must be reversed, or must be 
affirmed, according to the conclusion he had reached. 

Judge Moore often began his opinions in the same way. Short 
opinions which go directly to the heart of the case, and correctly 
determine the controlling questions are greatly to be desired, but 
are impossible to be written if a court is crowded, pressed and 
hurried, because the judges then have no time to review and revise 
and condense. 

A distinguished Judge, upon being asked why he wrote such 



174 GOVERNORS WHO HAVE BEEN 

lengthy opinions, replied: "Because I have not the time to write 
short ones." The reply may appear at first glance to involve a 
contradiction, but it does not, and every appellate judge will bear 
witness that it was the statement of absolute truth. 

A somewhat amusing story was told of a ruling made by Judge 
Buckley as trial judge. 

An attorney, who afterwards under the E. J. Davis administra- 
tion was Attorney General of Texas, presented a motion to quash 
an attachment. He set forth in elaborate and specific detail 
seventeen grounds why in his judgment the motion should be 
granted, and the eighteenth ground was, "for other reasons ap- 
parent of record." 

Judge Buckley, after careful consideration of the seventeen 
specific grounds, overruled them all, but quashed the attachment 
"for other reasons apparent of record," to him, but not to counsel. 

Judge Roberts became a Colonel in the Confederate Army, and 
in volume 26 the name of Judge Geo. F. Moore appears for the 
first time as a member of the court. I knew him as a young man 
beginning the practice might know a distinguished man much 
older than himself, but never saw him, so far as I remember, 
until he was on the bench long after the close of the war of 
'61-'65. 

My father knew him and esteemed his ability very highly. I 
heard him say more than once, "Geo. F. Moore sets at defiance, 
and disputes by his appearance, all the laws of physiology and 
phrenology." His head was much smaller than that of the average 
man, and he did not appear to be a man of strong intellect, but 
his many clear, vigorously reasoned, and profoundly learned 
opinions demonstrate that he was. 

His great opinion in the Sparks case in 27 Texas, page 705, 
proves in a highly gratifying and most conclusive way that he 
was not only a lawyer of the first order of ability, but a heroically 
courageous judge. 

He was a charming man socially. He was always dignified, but 
never austere, and was always approachable. 

There is not a lawyer in Texas who has had practice sufficient 
to require him to consult the Texas Reports, who is not debtor 
to Judge Moore for some of the ablest, and most illuminating and 
instructive decisions ever delivered from the Supreme Bench 
of Texas. 

I met him casually one morning in Galveston while the Supreme 
Court was in session there, and he said, "I am going back to the 
practice for a few days. I am going to Crockett to try one or 
two of my old cases." I said, "Judge, won't you run up against 
a statute?" He said, "What statute?" I said, "There is a statute 
which says that no Supreme or District Judge shall appear as 
attorney in any court." "Well," he said, "That is news to me." 



AND OTHER PUBLIC MEN OF TEXAS 175 

His ignorance of the existence of a statute confirms the ancient 
adage that "even great Homer may sometimes nod." 

I heard him relate on one occasion an incident in his practice 
which amused me very much, by reason of what may properly 
be termed his keen satire that it revealed. 

The City of Austin, or at least a large number of its citizens, 
had contracted to pay the Houston & Texas Central Railroad a 
large bonus if it ran a train into Austin by a certain date. 

The road failed by some days, or maybe a longer time, to fulfill 
its part of the contract, and the committee of citizens refused to 
pay the bonus. 

The road brought suit against all the obligors, and they sent a 
committee to Judge Moore to engage him as counsel. The chair- 
man asked him to name his fee. He fixed it at $5,000. The chair- 
man said, "That is satisfactory, go ahead and we will pay the fee." 
The Judge said, "No, sir, I will not go ahead on that basis. You 
promised to pay the railroad company to come here, and it is 
here, and now you have come to employ me to keep from paying 
the bonus promised, and my fee must be paid or secured." 

The eloquent and truthful tribute paid to the memory of Judge 
Moore by his life-long friend, Hon. Alexander W. Terrell, which 
is to be found in volume 60, Texas Reports, is well worth reading 
by every lawyer. It is such a tribute as might have been expected 
from such a source, and I know of no more appropriate or beauti- 
ful specimen of memorial oratory. 

The response of Chief Justice Willie on behalf of the court, to 
the resolutions, and to the address of Judge Terrell, was worthy 
the perpetuation accorded it in the same volume. 

It is a gem of fit phrasing and felicitous expression, and came 
from the heart of as sincere and pure a man as ever filled the 
exalted position of Chief Justice of the Supreme Court of Texas. 

In the same volume are to be found the memorial resolutions 
adopted by the bar of Tyler upon the death of Hon. Micajah H. 
Bonner, who by appointment of Governor Hubbard succeeded 
Hon. Geo. F. Moore when he resigned, and also the admirable 
address of Judge Jas. A. Baker of Houston, who presented the 
resolutions by special request of the Tyler bar. 

The tribute of Judge Baker to his distinguished friend was an 
offering of respect and admiration laid by the worthy living, on 
the bier of the worthy dead. 

One able lawyer and just judge paid fitting tribute to another 
who was like unto himself. One Christian gentleman bore witness 
before a great court that one who had adorned that court, illus- 
trated in his daily walk and conversation the teaching of that 
old, simple and sufficient faith, by which he who spoke was 
consoled and comforted when a few years later he answered his 
Master's call, "Come up higher." 



176 GOVERNORS WHO HAVE BEEN 



Chief Justice Willie and Associate Justice Stayton both responded 
to the resolutions and to Judge Baker's address, with feeling and 
appropriate tributes to the worthy dead. 

When any man, however exalted or however lowly his station, 
has so lived and served as to call forth from such men as James 
Addison Baker, Asa Hoxie Willie and John William Stayton heart- 
felt tributes of admiration, that man is avouched to those who 
survive him, and those who may come after him, as having lived 
according to the most exacting standards of worth and virtue. 

The war between the states closed April 9, 1865, and the conse- 
quent demoralization was such that all branches of the govern- 
ment were disorganized, and as I have not taken the time to 
search official records of that day, I do not know what was the 
condition as to the judiciary up to the election of a Supreme Court 
in 1866. 

My impression is that Governor Hamilton sought in a very com- 
mendable spirit to set the machinery of the trial courts in motion, 
and as I recollect, appointed Richard Coke as district judge, but 
I was not old enough at that time to take much interest in such 
matters. 

I have not the slightest recollection whether or not there was 
any convention in 1866 to nominate candidates for Supreme 
Judge; or whether or not the candidates for other State offices 
were nominated. 

That is however an immaterial detail. J. W. Throckmorton was 
elected Governor, and I believe Colonel Wash Jones was elected 
Lieutenant Governor. 

The Supreme Court was composed of Geo. F. Moore, Richard 
Coke, Stockton P. Donley, Asa H. Willie and Geo. W. Smith, and 
it was a very able court. 

None of them were old men, indeed scarcely middle-aged. Chief 
Justice Moore was only forty-four and Justices Coke and Willie, 
only thirty-seven. 

I do not recall ever having seen Justice Donley or Justice Smith. 

The opinions of the court of 1866 are contained in volumes 28 
and 29, and up to page 374 of volume 30 of the Texas Reports. 
The last opinion of the court was written by Justice Stockton P. 
Donley, in whose honor Donley County was named. 

While the court was on its summer vacation, — at least in Sep- 
tember, 1867, a military edict issued by one Griffin, commander 
of the Department of Texas, swept all the Supreme Judges and the 
20th district judges into the discard; and their places (at least 
in a physical sense) were filled by military appointees who could 
take the oath of allegiance, which meant that they had failed to 
stand by their State in her hour of trial, and could swear they 
had given none of her people any "aid or comfort" in time of war. 

It is just to say that one of the five, Andrew J. Hamilton, was 



AND OTHER PUBLIC MEN OF TEXAS 177 

a man of a very high order of ability, and an able lawyer and 
upright judge, and it is also just to say that while I was a mere 
youth at the time, I never heard then, or later, any charge made 
against the moral or official integrity of any of the reconstruction 
judges, but their intellectual and professional fitness was seriously 
questioned, and their constitutional and legal right to be where 
they were, was strenuously denied; but force, and not law, right 
or reason ruled in that mad hour. 



178 GOVERNORS WHO HAVE BEEN 

CHAPTER XXVI. 

The Chief Justice appointed by the Federal Commander, when 
the constitutional court chosen by the people was abolished, was 
Amos Morrill, who practiced law in East Texas before the war. 
He was a Union man, and I assume, conscientiously so. 

He was many years later appointed United States Judge for the 
Eastern District of Texas, which covered a territory now included 
in the Southern District. 

He, as I recall, usually, if not at all times, wore a claw-hammer 
coat of an ancient vintage as to style, and was an intense Repub- 
lican, but an amiable old man, and so far as I ever heard, an 
honest judge, but was inordinately vain. 

He said that when he was appointed to the judgeship he was 
on a visit to New York, and knowing that he would have to deal 
much with admiralty questions, he took steps to prepare himself 
in that branch of the law. For that purpose he bought a copy of 
Benedict on Admiralty to read on the boat on his way home, and 
then continuing in perfect seriousness, said: "And when I got 
to Galveston I knew all about Admiralty Law." 

Judge Wm. P. Ballinger told me the statement was made to him, 
and he never failed to be amused when he related the incident. 
He doubtless thought, most reasonably, that any man who could 
learn all the admiralty law in the time it took to make a trip by 
boat from New York to Galveston, had a phenomenal gift of 
acquiring knowledge. 

I witnessed a very amusing act on his part at one time in the 
Federal Court at Galveston. It was doubtless far more amusing 
to me, who had no interest in the case on trial, than it was to 
counsel who were interested in his decision. 

A large number of parties had been indicted under some Federal 
Statute relating to the Ku Klux, or interference with voters, or 
some other of the numerous acts of Congress which were designed 
to harass and worry the people of the South. 

The indictments were very long, and Judge Ballinger and 
Colonel George Flournoy were employed to represent the defend- 
ants who lived, as I recollect, in the southwestern part of the State. 

Both counsel were able lawyers. Colonel Flournoy was elected 
Attorney General of Texas at 26 years of age, and was a brilliant 
man of solid legal attainments, and Judge Ballinger's reputatioD 
as a lawyer of high rank had been long established. 

They assailed the indictments by logical and able arguments, 
buttressed by numerous authorities, and a wealth of legal learning. 

I chanced to drop into the court room just as the arguments 
on the demurrers closed. It was to be expected that the judge 
would say, "Gentlemen, I will take the matter under advisement, 
and will be glad to have a list of your authorities," or, if he had 



AND OTHER PUBLIC MEN OF TEXAS 179 

reached the conckision that the exceptions were not well taken, 
that he would summarize the legal reasons on which he based 
his conclusion. It seemed to me that respect for arguments of 
such ability, made by distinguished counsel, demanded one course 
or the other, but the Judge did not seem to think he was called 
upon to take either course. 

He reached quickly out, and picked up a Bible which he had 
ready at hand, and which he had evidently fixed with a book 
mark so it would open where he purposed to read. He turned it 
with the left end up and squinted his eyes to discover the place 
he desired to open it at, and having opened it, said: "See what 
the Bible says: St. Paul appealed unto Caesar because he was a 
Roman citizen. Shall it be said that a citizen of the United States 
is not as good as a citizen of Rome. The demurrers are overruled." 

The logic and eloquence of counsel brought forth no response 
from the court, except a quotation from Scripture. 

On one occasion after the argument had closed in an important 
case, counsel for plaintiff said: "Will your honor kindly withhold 
your charge until I can get a stenographer to take it down? This 
is a very important case to my client, and involves interesting 
questions of law, and I very much desire to have your honor's 
charge in written form." "Have you a stenographer present?" 
"No, sir, but I can have in a few minutes if given permission." 
"Very well, get him." In a few minutes the stenographer rushed 
in and prepared to take down the expected-to-be elaborate charge 
of the court. Whereupon the old Judge said, "Are you ready, 
Mr. Stenographer?" Upon receiving an affirmative relpy the Judge 
said, "Gentlemen of the Jury, I will now deliver you my charge 
on the law of the case. You are directed to return a verdict for 
defendant. Did you get that, Mr. Stenographer?" 

Whether he deliberately perpetrated a joke on the counsel, or 
whether he changed his mind on the law while waiting for the 
stenographer, no man knows. He apparently had no more sense 
of humor than a wooden Indian, and one supposition is about 
as likely to be true as the other. 

The Texas Reports, from page 374, volume 30, up to and includ- 
ing volume 39, have never been accorded any very great measure 
of respect by the bench and bar of Texas, yet they contain some 
very good opinions. 

It was the way by which the Judges came to get their offices, 
rather than their characters, which gave the people so much 
offense. 

I have never heard a doubt expressed as to their official in- 
tegrity. 

Many lawyers entertain the same opinion of the nine volumes 
as did one of the ablest lawyers I have ever known in Texas. 

Fire threatened the destruction of his library, and did de- 



180 GOV ERNORS WHO HAVE BEEN 

stroy the building in which his office was located, and he was 
aided by many people to save his books. 

The last man in the office before the room was in flames said, 
"Colonel, here are a lot of books you have left. I will bring them 

out." "No, sir," the Colonel said, "Let 'em alone. D n 'em, let 

'em burn," and they did. They were volumes 31 to 39, inclusive, 
of Texas Reports. 

The last judicial action of the court was the decision of the case 
of Ex Parte Rodriquez, the report of which covers the last 70 
pages of volume 39. A full account of the case has already been 
given. No doubt the court believed that the result of the decision 
would be to nullify the election of the Democratic ticket headed 
by Richard Coke, and that E. J. Davis would hold over, as there 
would be no successor to him to qualify. 

When I say that the court no doubt so believed, I do not mean 
to charge that it purposely and consciously construed the law 
erroneously so as to bring about that result, but in that day of 
passion and excitement that charge was freely made, and affidavits 
were presented to show that the case was a fictitious one, con- 
cocted with the design of thwarting the purpose of the Democrats 
to get possession of the government of the State. 

I never saw but one of the three judges in my life, and never 
spoke to him; and they are all dead, but even at this late day I 
have no disposition to asperse their memories, by charging them 
with official infidelity. 

Justice Walker delivered the opinion of the court which I have 
read. It covers about 27 pages of the report. 

I heard when he went upon the Supreme Bench that he was an 
officer in the Federal Army, his regiment being stationed in Texas, 
but that he had been a lawyer perhaps in Michigan or Wisconsin, 
or some other Northern State. I have said the opinions of the 
court are not much respected, yet only a few days ago a friend, 
and kinsman of mine, for whose legal ability I have great respect, 
told me he considered some of the opinions of Judge Walker to 
be very able ones. 

Whether the court construed the law correctly or not made no 
difference. Its opinion was ignored, and the Democrats put all 
the Republican office holders out, and took possession of the 
State government and have had it ever since. 

As an abstract proposition, disobedience of the decree of any 
court of lawful jurisdiction is not a light matter, and to defy the 
decision of a court of ultimate resort, and ignore its decree was 
a bold step, but the people had been for four years misgoverned 
and robbed, and they intended to practically construe the law 
themselves, and most fortunate it was that they had elected such 
a man as Richard Coke to carry out their wishes. 

Conceding for the sake of argument that the Democrats were 



AND OTHER PUBLIC MEN OF TEXAS 181 

technically unjustified, the fact remains that they were entitled 
to deliverance from a State government which respected the laws 
neither of God or man, and to such circumstances the old couplet, 
"It matters not how, or where, or when, the wily fox is trapped 
or slain," is applicable. 

Governor Davis saw resistence was useless, and he vacated his 
office, and all the other officers followed his sensible example, 
except the Secretary of State, who came to Texas as a Federal 
soldier — perhaps a Colonel. 

He declined to surrender his position, or the archives of the 
office. It was said that the Democrats did not resort to quo 
-warranto, or any other kind of legal remedy, but that James E. 
Dillard of Kaufman County, then a member-elect of the Legis- 
lature and many years later a Judge of the Kaufman-Ellis District, 
went in and vi et armis, o^ vi et pedis (if I may coin a word of 
dog-Latin), lifted the imported Secretary of State out of his seat, 
and put him out into the hall, and installed his successor. 

The ejected Republican office holder, if I am not mistaken, 
trought suit against Mr. Dillard, and perhaps others and recovered 
judgment for damages for the assault, — and in a strictly legal 
sense ought, perhaps, to have done so. I feel sure he continued 
to make his home in Austin and afterwards was elected Mayor 
of the City. Under such extraordinary conditions, and such a 
pressing emergency, a pair of strong arms and a far-reaching 
leg and foot are just as effective as a judicial writ of ouster, and 
far speedier in getting results. 

The Chief Justice of the Court, when the futile opinion in the 
Rodriquez case was decided, was Hon. "Wesley Ogden. He was 
ihe father of Hon. Chas. "W. Ogden of San Antonio, who practiced 
law for many years in that city, and deservedly attained dis- 
tinction and success in his profession, and his sudden death only 
a few years ago caused deep regret to a wide circle of friends. 

The other member of the court was General (as he was commonly 
called) J. D. McAdoo. He practiced law in Washington County 
many years and was a man of decided ability, and so far as I 
ever heard, of most exemplary character. His daughter, a most 
excellent lady, is a near neighbor of mine in my home city, and 
her husband is attorney for one of the great railroad lines of 
Texas, and a very capable lawyer. 

I remember very vividly hearing General McAdoo make a speech 
in a criminal case before I had reached my majority. 

He was, as I recall, a very tall man of massive build, with a 
strong, impressive voice, and a very forceful speaker. The defend- 
ant was charged with assault with intent to murder. Both he 
and the party he shot were gentlemen of good character and 
social position. It was proved that some little time before the 
>shooting took place the man who was shot cursed the defendant 



182 GOVERNORS WHO HAVE BEEN 

in the presence of his (the defendant's) wife and mother as a 
"d d coward and a d d scoundrel," 

General McAdoo was counsel for the defense while the prose- 
cution was being conducted by the late Seth Shepard, then a 
very young man, but even at that time a brilliant and capable 
prosecutor. 

Judge McAdoo's mother, a venerable old lady to whom he was 
devotedly attached, was, as I was advised, then living, as a member 
of his family. 

After discussing the testimony at some length, General McAdoo 
said with great deliberation: "Gentlemen of the Jury. I do not 

believe it would be well for any man to curse me for a d d 

coward and a d d scoundred under any circumstances," then 

raising himself to his full height on the tips of his toes, he said 
in tones of the most intense earnestness, "So help me God, he 
should not do it in the presence of my wife and mother, and live." 

I was standing or sitting very near to him, and his words and 
manner, and tones thrilled me through and through, and im- 
pressed me so that I have never forgotten the incident. Perhaps 
the fact that I fully agreed with what he said, and do yet, may 
have had something to do with the effect his words had on me. 
The defendant was acquitted. 



AND OTHER PUBLIC MEN OF TEXAS 183 

CHAPTER XXVH. 

I shall not trouble myself to deal at any length with the per- 
sonnel of the Court during the time when the decisions in volumes 
31 to 39, inclusive, were rendered. For the greater part of the 
time the court was composed of Judges Lemuel Dale Evans, Wesley 
Ogden and Moses B. Walker. For a brief time one James Denison 
was a member. 

After August 31, 1873, until the Rodriquez case was decided, it 
consisted of Judges Ogden, Walker and McAdoo. Judge McAdoo 
was a district judge before he went on the Supreme Bench. 

Before taking up the matter of the personnel of the Supreme 
Court under Democratic rule, it may be interesting to point to a 
decision which will reveal probably the briefest charge ever 
delivered in a case of murder where the judgment was affirmed, 
and the sentence of the law carried out. I do not set forth the 
style of the case because in all likelihood some of the relatives 
of the defendants, or one of them at least, are still living in Texas. 

The defendant referred to lived at one time in the town in 
which I was raised, where he had some relatives of excellent 
character. The charge will be found in volume 32, Texas Reports, 
page 67 (counting by the top paging). The charge is so very brief 
that I took pains to count the words in it, and there are only 165. 
Yet it was held sufficient to justify the hanging of tv,'o men. 

Judge Morrill, of whom I have written on previous pages, was 
Chief Justice of the Court when the opinion was delivered, and 
I heard him say once : "W^hen we were up there, and came to the 
decision of a criminal case, we never troubled ourselves much 
about technicalities or forms of procedure. If it appeared that 
the defendant had received deserved punishment we looked no 
further," or words to that effect. 

In this day and time, when if the pages of a charge in a murder 
case were put end to end, they would reach from the crown of 
the head, to the sole of the foot of the average defendant, the 
lawyer who reads the charge referred to will agree that Chief 
Justice Morrill's statement is supported by the record. 

The habit of writing long charges is most unfortunate. I know 
from experience that the Court of Criminal Appeals will, in an 
assault to murder case (the charge in which character of case is, 
or used to be, the bete noir of all judges), approve a charge one- 
tenth of the length of the average charge in such cases. Examina- 
tion of the charge in Williams vs. the State, 135 S. W. 552, will 
confirm this statement. I am reported as having been sitting as 
"acting judge," which is a mistake. I was Judge of the 61st Dis- 
trict, sitting for the Judge of the Criminal District Court, during 
his absence from the city. 

When Governor Coke went into office in January, 1874, the 



184 GOVERNORS WHO HAVE BEEN 

judges were appointive — and Governor Coke who had, as I have 
already said, demonstrated great ability as a Supreme Judge, 
appointed Oran M. Roberts, Reuben A, Reeves, Thomas J. Devine, 
George F. Moore and William P. Ballinger to compose the Supreme 
Court. 

Hon. George Clark was appointed Attorney General by Governor 
Coke, and Alexander W. Terrell and Alex. S. Walker were ap- 
pointed reporters of the court. The list of eight lawyers thus 
connected with the Supreme Court of Texas contained no name 
that would not have fitly adorned the bench. One of the reporters. 
Judge Walker, later became a member of the court. 

The court constituted, as stated above, rendered the decisions 
to be found in volumes 41, 42 and 43 of the Reports. The name 
of John Ireland first appears as one of the justices in volume 44. 
I think Judge Devine resigned. He lived for many years in 
San Antonio and died there. He was district judge for a long 
period, and was a learned lawyer, a courtly gentleman, and a 
citizen of the most exalted character. He was a devout believer 
in the Christian faith, and in the course of the eloquent tribute 
paid his memory by Judge Terrell, he said that as death drew 
near, the venerable jurist while suffering intensely, said, "Cease, 
fond spirit, cease thy strife; and let me languish into life." 

I have already dealt with the character and career of John 
Ireland. 

Judge Ballinger, as has been said on a previous page, qualified 
on the 3rd of February, 1874, and resigned the same day, because 
the salary (then $4,500) was not sufficient to justify him in 
holding the position. 

Governor Coke then appointed Judge Peter W. Gray of Houston. 
He held the position only about nine weeks, and when he resigned 
Governor Coke appointed Judge Robert Simonton Gould to suc- 
ceed him. 

Fortunate indeed was the Governor who had such material to 
choose from, and fortunate the State, the bar of which furnished 
lawyers so pre-eminently qualified morally and professionally for 
such a position. 

Judge Gray lived in Houston for many years, but was before the 
Civil War judge of a district reaching from Galveston to Madison 
County, inclusive, and he sometimes held court in Polk County. 
He was the first Judge I ever saw on the bench, and as I was only 
a few years old, I can hardly remember the time. It was in 
Madisonville, Texas. I remember, however, the Sheriff. I think 
he had two pistols, and he needed them in that county at that 
time. I was as afraid of him as if he had been a bear, and I 
clung tenaciously to my father's side. 

The present day district judges complain of inadequate salaries, 
as I did when on the trial bench, and they have a right to com- 



AND OTHER PUBLIC MEN OF TEXAS 185 

plain, but they get nearly twice as much now as Judge Gray 
received, and can get over their districts in automobiles, and in 
railroad trains and are allowed part, at least, of their hotel bills 
and other expenses. 

Judge Gray had to go from county to county on horseback, or 
in a buggy, or by stage — and plow through mud and swim over- 
flowed creeks to keep his official engagements, yet he was a 
lawyer who would have adorned the Supreme Bench of the 
United States. 

He was a delicate, dyspeptic man, — and for that reason was 
sometimes irascible on the bench — but he was a Virginia gentle- 
man — that is to say, he was the highest type of gentleman in the 
world, and always so demeaned himself. He never allowed the 
dignity of his Court to be offended or infringed upon, but every 
litigant and lawyer received absolutely fair treatment. He was 
absolutely fearless, physically and morally. 

On one occasion a party who was accustomed to getting drunk 
and disturbing the peace — and who was reputed to be a dangerous 
man — got out on the street in front of the Court House, and 
yelled, and swore, and otherwise violated the proprieties and 
the law. 

Judge Gray told the Sheriff to go out and tell the man to be 
quiet — that he was disturbing the court. The man was armed — 
there being no law against pistol carrying in those days — and he 
told the Sheriff that he was not in the Court House and the Judge 
had nothing to do with him. The Sheriff reported to Judge Gray 
what the "bad" man had said. 

The Judge said, "The court will take a recess" — and he went 
down stairs and out upon the square — and toward the offender, 
who, when he saw the Judge coming, said, "Judge Gray, I am 
on the public square where I have the right to be, — and you have 
nothing to do with me, and you musn't bother me." 

The Judge paid not the slightest attention to the warning, but 
walked up to the man, brushed his weapon aside, caught him by 
the collar, and led him into court — pushed him into a chair, took 
his seat on the bench, and entered a fine of a hundred dollars 
against him, and put him in the custody of the Sheriff, and turning 
to the counsel in the case on trial said, "Gentlemen, proceed with 
your case." 

If any man from the incident just related should draw the 
conclusion that Judge Gray was a brawler and fighting man, he 
will be very much in error. On the contrary, he was a strict 
churchman — and was for many years one of the vestry of Christ 
Church in Houston, and died consoled, and comforted, by his 
faith and trust in the divine promise of life eternal. 

He never sought to magnify his office, or display his authority 
by entering fines against lawyers and witnesses and jurors, as 



186 GOVERNORS WHO HAVE BEEN 

do many smaller men in judicial positions. A friend of mine — 
a man much older than I. — who practiced before Judge Gray, told 
me that he, one day, saw a lawyer whom 1 knew when a boy, 
appear before Judge Gray for the purpose of trying an important 
case — in a state of intoxication. 

Judge Gray knew the lawyer was addicted to that unfortunate 
habit, but knew that when sober, he was a lawyer of unusual 
ability. Instead of lecturing him, or entering a fine against him, 
the Judge said, "Perhaps, Colonel, we had best postpone this case 
till morning and have all day to try in. I will excuse you till 
then", or words to that effect. 

If any lawyer has interest enough in seeing how well a great 
Judge could try cases, if he will run through the reports of Judge 
Gray's time, he will see how rarely he was reversed. 

When the memorial resolutions in his honor were presented to 
the Supreme Court Judge Roberts in reply to them said he meant 
no disparagement to many other able trial Judges when he said 
"that taken all in all, Peter W. Gray was the best district judge 
ever on the bench in Texas." 

When he left the bench the number of Texas Reports had 
hardly reached 25 — in fact two among the latest cases he tried 
are reported in 25th Texas, Isaacs vs. The State, and Wyler vs. 
The State. 1 knew both defendants. 

I recall my father telling me Isaacs was going to be tried and 
he had plead "not guilty," and I asked my father how the man 
could say he was not guilty, when several people saw him kill 
Dr. Spillers? 

With all the curious interest of a boy I watched the defendant 
as he sat on the trial, wearing a pair of highly ornamental boots 
of his own make, and dressed faultlessly. 

Wyler killed his wife. The facts in both cases made it diffi- 
cult to charge the law properly, but Judge Gray did so with un- 
erring accuracy. 

I tried one homicide case twice in the same county in which 
Judge Gray tried the two cases above referred to, and was re- 
versed both times, which shows the difference between a lawyer 
like Peter W. Gray and a lawyer like myself. 

Judge Roberts said the Supreme Court always treated the 
judgments rendered by Judge Gray with great deference and 
respect. 

There have been five judges in Texas who were reversed in 
fewer cases than any others of whom I knew. They were 
Peter W. Gray, James H. Bell, Alexander W. Terrell, Reuben R. 
Gaines, and Frank A. Williams. 

I have never made the calculation, but I feel safe in saying 
that eighty-five to ninety per cent of Judge Gray's and Judge 
Williams' cases were affirmed. I thought 1 did fairly well with 
a proportion of affirm.ances of about seventy per cent. 



AND OTHER PUBLIC MEN OF TEXAS 187 

Judge Gray's health was very much impaired when Gov. 
Coke appointed him to the Supreme Bench in 1874, and he 
wrote only a few opinions in the two months that he served 
in the court, but, as Judge Roberts said, "They were witnesses 
to his legal learning." 

Judge Gould was living in Galveston when he received the 
appointment as Associate Justice, but he lived many years in the 
sand hills of Leon County, where his memory is yet deeply re- 
vered. The Camp of Confederate Veterans for that County is 
named in his honor, and it could have been given the name of 
no purer, truer, knightlier gentleman. 

He raised a battalion of cavalry in that county and surround- 
ing counties and commanded till the war closed. He was a 
chivalrous soldier, a knight sans pear et sans reproche. 

He was on the Supreme Bench as Associate Justice and Chief 
Justice for nearly eight years, and his brief, terse, clear opin- 
ions have been the safe guides for many a lawyer as he sought 
light upon the law. 

Robert S. Gould as nearly fulfilled my ideal of a Christian 
gentleman as any man I ever knew. He was, of course, many 
years my senior, and I claimed no intimacy with him, but he 
was my father's friend, and some of my kindred followed him 
in battle, and they love his memory yet. 

He was dignified, but never austere, and with the gentleness 
and tenderness of a woman there was blended in him the cour- 
age of a hero. 

He was an able and scrupulously just Judge, a model husband 
and father, and while he never made broad his phylacteries or 
indulged in cant, he was a sincere, humble, devout Christian, and 
illustrated his profession in his "daily walk and conversation." 

Judge Gould and Judge Winkler of Corsicana, who was elected 
to the Court of Criminal Appeals in 1876, had the opportunity in 
1866 to display what manner of men they were. 

Judge Gould had been Major of a battalion in the Trans-Missis- 
sippi Department, while Judge Winker was, for a large part of 
the time, W^ar Commander of the 4th Texas Regiment, Hood's 
Texas Brigade, in "Virginia; which is to say he went again and 
again to where valor kept tryst with death. 

In 1866 they became opposing candidates for Judge of a Judi- 
cial District extending, I believe, from Huntsville to Corsicana. 

W^hen what purported to be, and were in good faith believed to 
be, the official returns came in, Judge Winkler had an apparent 
majority, and received the certificate and qualified, and I have 
heard, was on the bench. In some way a mistake has been made, 
and a recount showed that Judge Gould actually had the majority. 

If I ever heard where Court was in session, I do not now re- 
member it, but I have been told Judge Gould presented the revised 



188 GOVERNORS WHO HAVE BEEN 

returns, and the certficate he had received to Judge Winkler, and 
the latter was fully convinced that an error had been committed 
in tabulating the return, and promptly yielded his seat on the 
bench to Judge Gould. 

He did not wait for a mandamus or quo warranto or any other 
kind of legal process or procedure. He knew Judge Gould would 
not have claimed the seat if he had not known he was legally en- 
titled to it, if the salary had been a million dollars a year. 
Clarence M. Winkler would not have kept it, when he knew the 
majority was against him, if a hundred courts had decreed it 
to him. 

Neither of two Southern gentlemen who were reared according 
to the noblest traditions of the "Old South", and who held to its 
exacting and exalted ideals would have kept an office to which 
he knew he had not been elected. It is to be hoped that their 
tribes are not extinct. 

Judge Gould's tenure of office proved to be very short. He and 
all the other nineteen District Judges who were elected when he 
was, were swept from the bench at "one fell swoop" by military 
power. 

Their only offense was that they were patriotic, decent men, 
and honorable and able judges, and hence, were necessarily "im- 
pediments to reconstruction," which was a riotous revel of cor- 
ruption, rottenness and robbery. 

Judge Gould's nephew, Hon. Robert Gould Street, became a citi- 
zen of Galveston more than fifty years ago when but little past 
his majority. 

By sheer force of native ability and unflagging industry, he 
made a place for himself in the front ranks of the exceptionally 
able bar of that city, which he has ever since maintained. 

He has, for many years, been judge of one or the District 
Courts in that city, and has edited most ably a new edition of 
Sherman and Redfield on Negligence. He is also author of that 
able work. Street on Personal Injuries. His legal ability is fully 
recognized by the profession everywhere. 

He is a highly cultured gentleman, and is deservedly esteemed 
and respected, as a judge and a citizen. 

My recollection is that J. M. Thurmond, who was afterwards 
Mayor of Dallas, and was killed in a personal encounter in the 
Court House, in that city, perhaps thirty-five or more years ago, 
by a well known lawyer, was appointed by the military com- 
mander to succeed Judge Gould. I knew Thurmond several 
years later, and he was, after a fashion, a likable kind of a 
man. He was not devoid of natural sprightliness, but his knowl- 
edge of law, at least Texas law, was nil, and he possessed no 
more fitness for District Judge than did any hack driver in Dallas. 

When I went upon the bench of the 12th Ditrict I was practi- 



AND OTHER PUBLIC MEN OF TEXAS 189 

ticing law in Leon County, and a member of the bar there told 
me he was present when Thurmond first took his seat as judge. 

Thurmond was preparing to set sail on what to him was a 
wholly uncharted sea, so he called to Judge Gould and said: 
"Judge Gould, how do I proceed to open court?" The Judge re- 
plied: "According to the statute, sir," and turned and left the 
Court House. 

It may seem incredible to those who did not live in that day 
and time, that such conditions could have existed, and such 
occurrences have taken place, but they did. 

I have heard it often said that one of the military appointees 
as judge in one of the southwestern districts was requested on 
one occasion to take the recognizance of a defendant in a crimi- 
nal case, and that the District Attorney, instead of saying: "Your 
Honor will please take the recognizance of the defendant," said: 
"Your Honor will please recognize the defendant." The Judge 
looked hard at the prisoner for an appreciable length of time, 
but did not raise his own hand, nor direct the defendant to raise 
his. Again the District Attorney said: "I beg your Honor's 
pardon, but will you please recognize the prisoner?" 

The judge said with deliberate solemnity: "I think I'll know 
the man when I see him again." 

One of the reconstruction judges opened court in an interior 
town when he was more than half intoxicated. 

He said: "Mr. Sheriff, open this d d shebang." The sher- 
iff made the formal proclamations at the door of the court house. 

The judge ran over the docket in a short time, then said: "Mr. 

Sheriff, close this d d shebang," and it was closed. That 

judge later became a Federal Judge and, having abandoned the 
liquor habit, became a very capable judge. 



190 GOVERNORS WHO HAVE BEEN 

CHAPTER XXVni. 

The Court composed of Chief Justice Roberts and Associate 
Justices Reeves, Moore, Gould and Ireland, continued until the 
third Tuesday in April, 1876, when the number of judges became 
three, the change having been made by the Constitution of 1875, 
which was adopted by popular vote in February, 1876. 

As I recollect, neither Judge Ireland nor Judge Reeves were 
candidates for nomination at the convention in Galveston in Jan- 
uary, 1876. The salary was reduced from $4,500 to $3,500. My 
impression is that the salary was no attracton to Judge Ireland, 
even at the higher figure, as he was a man of ample means, 
and accepted the position only on account of the honor attached 
to it. 

As I remember, the health of Judge Reeves was such as to make 
it undesirable for him to attempt to continue on the bench, and 
do the arduous labor the position made necessary, and he was 
that manner of man who was not willing to accept the money 
of the State, if he could not render a reciprocal measure of 
service. 

He was one of the twenty judges who was elected in 1886, and 
in 1867 was put out of office by military order. 

He was an able lawyer and a most amiable, kindly man. His 
son, William Q. Reeves, once appeared before me in a very im- 
portant case and was a very skillful and capable lawyer. He was 
afterwards judge of the Palestine District, a position which he 
filled with marked ability. 

He was a delightful, popular man, and his untimely death, ere 
the sun of his manhood had reached its noon, was a deep sor- 
row to a host of friends. 

Judge Roberts was elected Chief Justice, and Judge Moore 
and Judge Gould Associate Justices at the 1876 election. When 
the Court so constituted met on April 18, 1876, Hon. H. H. Boone 
of Grimes County took the place of Hon. George Clark as 
Attorney General. 

One able lawyer and splendid gentleman succeeded another. 
Judge Clark did not desire to hold the position longer, and as I 
have said before, Major Boone did not seek it or desire it, but 
obeyed the call of the people, and did not endeavor to retain it 
beyond the close of his term in December, 1878. 

The 1876 Court rendered the decisions in Volumes 47, 48 and 49. 

Judge Moore resigned as Associate Justice August 27, 1878, to 
take effect October 1, 1878. Judge Roberts was chosen as the 
dark horse nominee to break the ten days' deadlock between 
Governor Hubbard and Ex-Governor Throckmorton in the Austin 
Convention of 1878, and in consequence he resigned prior to the 
Tyler term of 1878. 



AND OTHER PUBLIC MEN OF TEXAS 191 

Judge Micajah H. Bonner was appointed by Governor Hub- 
bard to succeed Judge Moore, and he and Judge Moore and Judge 
Gould constituted the Court for some time. Judge Moore was 
elected Chief Justice and Judge Bonner Associate Justice at the 
election in November, 1878. 

The Court composed of Judges Moore, Gould and Bonner ren- 
dered the opinions in Volumes 50, 51, 52, 53, 54 and 55. Judge 
Moore resigned as Chief Justice Nov. 1, 1881, and Hon. John W. 
Stayton was appointed Associate Justice Nov. 2, 1881, and Judge 
Gould was appointed Chief Justice. His name appears as that 
of Chief Justice first in Vol. 56 of the Reports. 

In 1882 Judge Gould was defeated for Chief Justice in the Con- 
vention at Galveston by Hon. Asa H. Willie. Judge Bonner de- 
clined re-election and Hon. Chas. S. West was elected to the 
position of Associate Justice. 

As has been already seen, Judge Willie was a member of the 
Court in 1866, hence was not without experience on the appel- 
late bench. He was not an orator, but by reason of his profound 
knowledge of the law and his charm of manner, and high char- 
acter was a very able trial lawyer. 

He was a delightful, lovable gentleman, and his opinions which 
are to be found in Volumes 58 to 70, inclusive, testify in the 
strongest terms of his ability as a judge. He resigned March 3, 
1888, after a little over five years' service. 

He was compelled to resign owing to the inadequacy of the 
salary. I went into his office on one occasion when the court 
was in session at Galveston and he was delving into a record 
with books piled high around him, and I said: "Judge, I wish 
they would quit carting you judges around over the State from 
Galveston to Austin and from Austin to Tyler." He replied in his 
quiet, gentle way: "I wish they would pay us more." 

It is said he expended out of his personal funds while in office 
nearly as much as the State paid him. Not a few of the able 
judges who have adorned the Supreme Bench of Texas have left 
it poorer in purse than when they took their seats upon it, and 
many of them have left it with health hopelessly impaired, yet 
it has always been the case, and is yet, that if the suggestion 
is made to increase their salaries to an amount commensurate 
with the dignity of the position^ and the arduous and continued 
labor they must perform, the average legislator cries out: "You 
want to rob the people to pay the judges. If they didn't get more 
on the bench than they can make practicing law they would not 
law, they would not want the place." 

There is no doubt that such statement has been often made, yet 
it is a fact as every intelligent man knows, that there are many 
honest and able lawyers who would efficiently fill the position 
of Supreme Judge who would forsake a law practice paying from 



192 GOVERNORS WHO HAVE BEEN 



three to five times the salary of a Supreme Judge, to go on the 
Supreme Bench, because they value the honor of the position 
more than they do money. The man who does not entertain that 
conception of the position of Supreme Judge is not the kind of 
man to put in that position. 

I never, so far as I recall, ever saw Hon. Charles S. West, but 
those who knew him best admired and loved him most. He was 
genial, hospitable, and cultured, and as a trial lawyer had few 
superiors, if any, in Texas. 

The firm of Hancock & West, located at Austin, did a very 
large practice. Both members were able lawyers, but as I recall 
differed in political faith. Judge Hancock was a Union man, 
but in 1874 defeated for the Democratic nomination for Congress 
Hon. Seth Shepard, who was then only 27 years of age, but who 
had a host of the most devoted friends that any man in Texas 
ever had. The contest in the convention was long and bitter, 
but Judge Hancock won out and was elected to Congress — per- 
haps more than once. He was a man of very vigorous intellect. 
At an early age Judge West served in the Legislature and was 
a member of the constitutional convention of 1875, and was one 
of the codifiers of the law in 1879. 

Judge West had no taste for political strife. He was essen- 
tially a lawyer and was one of the highest class. 

His (I believe eldest) son, Robert H. West, died at an early age, 
but not before he had established a deserved reputation as a 
skillful and successful lawyer. He appeared before me on one 
occasion in a land case which presented some very novel ques- 
tions of law, and while he ultimately lost, he conducted his side 
of it with marked ability. The case was somewhat out of the 
usual order, and in my finding of facts I said that "it is evident 
from the uncontradicted testimony that the defendants had de- 
liberately laid a plan to steal the plaintiff's 640 acres of land." 

The statement was out of the usual order and perhaps may 
have been in a sense unjudicial, nevertheless was a fact. 

Mr. West ("Bob," as he was usually called) said it might be 
construed as to, in effect, impute some wrongdoing to him, so I 
added the statement in substance that "no reflection is intended 
upon counsel for defendants, as he took the case as he found 
it, and his character was such as to rebut even the suspicion 
that he would be party to any improper transactoin." He was 
entirely satisfied with the addendum. 

I have heard that the members of the appellate court at Gal- 
veston were much amused at the finding, but concluded it had 
not best be set forth verbatim in the report of the case. The 
case is reported in 21st S. W., p. 711. 

Another son of Judge West is now United States District Judge 
for the Austin and San Antonio District. It is a rather remark- 



AND OTHER PUBLIC MEN OF TEXAS 193 



able fact that he presides over a court of which his distinguished 
grandfather, Hon. Thomas H. Duval, for whom he was named, 
was, for many years, the judge. 

There have been some curious (so to speak) "mixups" of mem- 
bers of the same family in office and in politics — not only in 
Texas, but elsewhere. 

Some forty years ago father and son were opposing candi- 
dates in a Texas district for State Senator. The son was elected. 
The memory of the remarkable race between the Taylor broth- 
ers in Tennessee in 1886 for Governor which "Bob," Democrat, 
won over "Alf," Republican, has been recently revived by the 
election as Governor after a lapse of thirty-four years of "Alf" 
in his 72nd year, over the Democratic nominee. 

In Southeast Texas father and son were judges in adjoining 
districts, and the father had to pass through the son's district to 
get to one of the counties in his own, and what was more un- 
usual, the son, by promotion to the Chief Justiceship of the 
Court of Civil Appeals, was called upon to review cases tried 
by his father. 

The son is a handsome man and a good dresser, while his 
father, though he always clad himself in decent garments, paid 
but little attention to the fashions. 

It is said that upon one occasion the elder man was called to 
the county seat of one of the counties in his district to hear a 
habeas corpus case. The call was urgent, and it found him clad 
in khaki, and with hunting boots on, and in that garb he went. 

The son chanced to see him, and suggested that he ought to 
get another suit — that his garb was wholly unjudicial. As the 
story goes, the old gentleman said : "That's all right. These 
clothes are good enough. It has always been the case in our 
family that you furnished the style, and I furnished the brains." 
The reply was witty, but while the elder man possessed a vig- 
orous intellect, he did not possess all of the brains of the family 
by a great deal. The son has a liberal share. 

Everybody knows that father and son were both President of 
the United States, and when James A. Bayard of Delaware passed 
out of the Senate, his son, Thomas Francis Bayard, took his place. 

For a considerable period of time the son of Justice William 
R. Day of the Supreme Court of the United States, was Judge of 
the United States District Court of Ohio, so the father was called 
upon to review the son's decision. 

The son resigned and went back to the practice, and in due 
course, appeared before the Supreme Court to argue a case. He, 
it seems, is a tall, pow^erfully built man, while his father is thin, 
and small, and unusually light in weight. The son made a vigor- 
ous argument and when he had concluded, one of Justice Day's 



194 GOVERNORS WHO HAVE BEEN 

brother judges leaned over and said to him: "Judge, that young 
man is a block off the old chip." 

That incident reminds me of a similar incident which occurred 
between an elderly and very able lawyer and a younger man — 
his nephew — who opposed him as counsel in an important case. 
I knew both parties. The younger man was inclined to be vain 
and boastful and said to the elder: "You will find out before 
you get through that I am kin to you, and a chip off the old 
block." The uncle said: "Yes, but they were chipping powerful 
small chips when they got to you." 

Remembering the many incidents that recur to my mind as I 
write, has the effect to break to some extent the thread of my 
story of the judiciary of Texas, but the recital of such incidents 
serve to relieve the monotony of reading of names, and dates, and 
dry details of changes by election, resignation and appointment. 

The opinions of Judge West are to be found in Vols. 58 to 64, 
inclusive. Feeble health compelled him to resign, which he did 
on September 29, 1885, and Governor Ireland appointed Hon. 
Sawnie Robertson of Dallas to succeed him. 

The admirable character of Judge West and the lesson of his 
useful life are fittingly portrayed in the report of the memorial 
exercises in the Supreme Court as reported in Vol. 66 of the 
Reports. 

Judge Robertson was perhaps the youngest man ever appointed 
or elected to the Supreme Bench of Texas. He was reared, I 
believe, in Tyler, and is a close blood kinsman, if I am not mis- 
taken, of Hon. Horace Chilton. 

He vindicated the opinion of his friends and the wisdom of 
Governor Ireland in complying with their request for his ap- 
pointment, for he proved to be a very able judge, as his opinions 
to be found in 64 and 65 Texas show in a most gratifying way. 
He too was compelled to resign from the bench owing to the in- 
adequacy of the salary attached to the office. He did not long 
survive his return to the practice, but died in the flower and 
prime of a splendid manhood. 

The name of Reuben R. Gaines appears as a member of the Su- 
preme Court in Vol. 66, for the first time, the court being 
composed of Judges Willie, Stayton and Gaines, a triumvirate of 
Judges worthy of the highest traditions of the Supreme Court of 
Texas. 

When Judge Willie resigned in March, 1883, Judge Stayton be- 
came Chief Justice; and Judge Alex S. Walker, who had long 
been one of the reporters of the court, was appointed associate 
justice. He had been district judge of the Austin District and 
was an able lawyer, and a man of high character. His opinion 
appears in Volumes 70, 71, and 72 of the Reports. 

If I am not mistaken he was defeated for the nomination by 



AND OTHER PUBLIC MEN OF TEXAS 195 

Hon. John L. Henry of Dallas, who took his position on the bench 
January 1, 1889, and Judge Walker succeeded Judge Terrell in 
the capacity of Reporter. 

Judge Henry was an East Texas man. He practiced for many 
years in Polk County, and later moved to Tyler — thence to Dal- 
las. He was lineally connected with the great orator Patrick 
Henry, and in the earlier stages of his professional career, was 
a very eloquent speaker, and was a most attractive, lovable and 
worthy man in every way. 

Neither the greatest trials have been held, nor the greatest 
speeches been made in the stately temples of the law such as can 
be now seen even in small county seats, but the most primitive 
temporary court houses, in mere hamlets, have been the scene of 
great legal battles, and great professional triumphs. 

When I was a little past my majority, and had been at the bar 
but a short time, I heard the trial of a contested will case in 
which Judge Henry was counsel for the contestants, both of 
whom were blind and close kin to the testator, but according to 
the will offered for probate, he had given his estate to entire 
strangers. 

One of the beneficiaries was a lawyer of considerable means, 
a member of the bar of the district. 

The trial was had in the county seat of a recently created 
county which had been cut off from other counties. Court was 
being held in a room built for a store, out of unplaned lumber 
in California box style, with no judge's stand, the Judge's seat 
being not exceeding four feet from the jury, and when Judge 
Henry was delivering the closing speech he was not half that 
distance from the foreman of the jury. The proponent and 
chief beneficiary under the will was sitting where Judge Henry 
could have laid his hand on him. I shall never forget his pero- 
ration. 

He said — "Gentlemen of the Jury: Some of you and I have 
known each other a long time. We are not as young as we were 
when first we became friends. None of us have accumulated 
much of this world's goods, but the little store we have gotten 
together we want to go to our loved ones. 

"The man who it is alleged made the will offered for probate 
wanted his property to go to my clients, whom you have seen 
sightless and poor. The will you are asked to uphold does not 
give them that property. Who knows but when you and I come 
to die, when our visions grow dim, when the death damp gathers 
on our brows, and we look for the last time on this earth upon 
our loved ones, that somebody inspired by selfish greed, will 
not stand by our dying pillow and wring from our wives and lit- 
tle ones their just heritage, as the man who claims under this 
will stood by the bedside of the uncle of my clients and wrung 



196 GOVERNORS WHO HAVE BEEN 

from him as he lay dying the heritage which was justly theirs?" 
There was a pleading pathos in his very tones which defies 
translation. 

Tears stood in the eyes of more than one of the jurors when he 
had closed, and the verdict was in his favor. 

The opinions of Judge Henry are to be found in Volumes 72 
to 85, inclusive. 

Hon, John W. Stayton who, as I have said, succeeded Judge 
Willie as Chief Justice in March, 1888, was elected to the position 
in November of that year. 

The memory of that great judge is too fresh in the minds and 
hearts of the bar and bench of Texas to make necessary any ex- 
tended comment at my hands. Nothing can be added to the 
tributes paid his memory by the bar, and by his associates, 
which are to be found in the 87th volume of Texas Reports. I 
had the melancholy pleasure of drafting the tribute which was 
adopted by the Bar Association of Texas and which was pre- 
sented to the Supreme Court by Ex-Attorney General J. H. Mc- 
Leary. 

It is a striking illustration of the truth that "life is but a float- 
ing shadow," that of the three Judges then on the bench, the five 
members of the committee on resolution of the State Bar As- 
sociation, and the two distinguished lawyers who addressed the 
court, ten in all, only two are now living, that accomplished and 
cultured lawyer, Jas. B. Stubbs of Galveston, and myself. 

Judge R. R. Gaines succeeded Judge Stayton as Chief Justice, 
and the name of Hon. T. J. Brown appears as a member of the 
court first in Volume 86. 

My recollection is that he was appointed by Gov. Hogg, and he 
remained a member of the court until his death. The name of 
Hon. Leroy G. Denman appears first as a member of the court 
in Volume 87. He was appointed by Gov. Hogg, and in the con- 
vention at Dallas in 1894 there was a very close contest for the 
nomination between him and Major F. Charles Hume of Galves- 
ton. Judge Denman was successful. 

The friends of both men were earnestly active, and the dele- 
gates to no convention ever had the opportunity to choose be- 
tween two men better qualified for service in the Supreme Court 
of a great State. 

The court composed of Judges Gaines, Brown and Denman con- 
tinued until May 1, 1899, when Judge Denman resigned for the 
same reason I have heard, that influenced many of his prede- 
cessors; inadequate salary. Gov. Sayers appointed to succeed 
him Hon. Frank A. W'illiams who was and had been for some- 
thing more than six years a member of the Court of Civil Appeals 
for the First Supreme Judicial District. 



AND OTHER PUBLIC MEN OF TEXAS 197 

I have heard that Gov. Sayers did not know, and had never 
seen Judge Williams when the appointment was made. 

Before, and when Judge Williams was elected to the Court of 
Civil Appeals Bench he was judge of, I believe, the 3rd district 
of Texas, in any event it was the district composed of Houston, 
Anderson and Henderson counties. His home was at Crockett, 
where before he went upon the bench he practiced law in con- 
nection with his brother-in-law, the late Col. David A. Nunn, a 
very able lawyer, and a man of high character and who was 
greatly and justly esteemed for his courage, integrity, high pro- 
fessional ideals, and legal ability. 

My district was the one next on the South (the 12th) and I 
once, and perhaps oftener, exchanged districts with Judge Wil- 
liams as he was disqualified in a number of cases in the district 
court of Houston County. His appointment by Gov. Sayers met 
universal approval, for he had on the district bench, and on the 
intermediate appellate bench, demonstrated a very high order of 
ability, and he added, if possible, to his reputation on the Su- 
preme Bench. 

The Supreme Court of Texas when composed of Judges Gaines, 
Brown and Williams commanded the unqualified respect of law- 
yers in and out of Texas. 

In the summer of 1910 the State Bar Association of Virginia 
and Maryland held their annual meeting at Hot Springs, Virginia, 
a very beautiful spot. 

The business sessions were held separately, but all meetings 
for social enjoyment were held jointly, and of course a banquet 
was a part of the proceedings. It was a very fashionable and 
very expensive hostelry, so much so that the man who went there 
when the rates usually charged were in force, had to have a 
plethoric purse, but the management in order to induce the meet- 
ing of the two associations there, put the rate at $3.00 a day 
table d' bote. I heard that the usual rate was from ten to twenty 
dollars a day a la carte. I assume they knew that rate would be 
be prohibitive to the average lawyer, as it certainly would have 
been to me, so they reduced the rate to the extent stated above. 

I stood that rate four days. I had a very highly esteemed 
friend from Richmond, Virginia, who was elected president of 
the Bar Association of that State, and through him I met many 
lawyers. In the course of the speech-making at the banquet a 
distinguished lawyer from Baltimore in the course of an admir- 
able speech said, "Until in the comparatively recent past I looked 
very lightly upon Texas lawyers and Texas Courts. I rarely 
paid any attention to a reference to a Texas case. I thought 
most of the law in Texas Reports was "horse-back law" and 
treated it accordingly, but a few years ago my personal en- 
gagements called me to Texas, in connection with a receivership 



198 GOVERNORS WHO HAVE BEEN 

case (The Kirby Lumber Company, receivership), and I was 
thrown in contact with many Texas lawyers, and met the Judges 
of the Supreme Court of Texas, and I returned home and an- 
nounced that I had been mistaken as to Texas lawyers and 
courts. My opinion of both was entirely revolutionized, as will 
be the opinion of any other lawyer who meets Texas lawyers 
and Texas judges as I did." 

The frank and complimentary statement of one of the leading 
lawyers of a great city was very gratifying to my State pride. 
The conclusion reached was not surprising to me, because I 
knew he had met Reuben R. Gaines, Thos. J. Brown, Frank A. 
Williams, Thos. H. Franklin, Leroy G. Denman, Presley K. Ew- 
ing, Sam Streetman, Frank Andrews, T. H. Ball, Joe H. Eagle, and 
others of like standing — all worthy representatives of the able 
bar of a great State. 

Associate Justice T. J. Brown was appointed Chief Justice Jan- 
uary 3, 1911, to succeed Hon. Reuben R. Gaines, who had re- 
signed and on the same day Hon. W. F. Ramsey, who had been 
a member of the Court of Criminal Appeals, was appointed as- 
sociate Justice. Judge Frank A. Williams resigned to take ef- 
fect April 1, 1911, and Hon. Joseph B. Dibrell was appointed to 
succed him. Judge Ramsey resigned April 1, 1912, and Hon, 
Nelson Phillips was appointed his successor. 

Hon. W. E. Hawkins was elected in November, 1912, and suc- 
ceeded the Hon. Joseph B. Dibrell. 

The court thus came to be composed of Judges Brown, Phillips 
and Hawkins. Judge Brown died May 26, 1915, and Associate 
Justice Phillips was appointed Chief Justice and Hon. J. E. Yan- 
tis was appointed Associate Justice. On the resignation of Justice 
Yantis Hon. Thomas B. Greenwood was appointed Associate 
Justice. Judge Gaines was a member of the Court for about 25 
years. His name first appears as that of one of the members 
of the Court in Vol. 66. 

Judge Brown was a member of the Court for about 22 years, 
and left an enduring record of most valuable service. Both had 
been very able and efficient district judges, and their opinions 
which are to be found in many volumes of the reports demon- 
strate that they were lawyers of the first order of ability, and 
when on the bench they were deeply entrenched in public es- 
teem and confidence. 

Upon the golden anniversary of the marriage of Chief Justice 
Gaines he was presented by friends and admirers with a hand- 
some token of esteem in the form of a gold watch and chain. 
It was my privilege to be permitted to participate in paying a 
tribute to one who as man and judge so fully deserved it. 

Judges Ramsey and Dibrell displayed marked ability as appel- 
late judges, and their retirement from the bench was deeply 



AND OTHER PUBLIC MEN OF TEXAS 199 

regretted. Judge Ramsey has since retirement been entrusted 
with important financial responsibilities, and has proved as ef- 
ficient in the field of finance, as he was in that of the law. 

Judge Hawkins will be succeeded by Hon. Wm. Pierson of 
Hunt County, and will be followed into retirement by the good 
wishes of many friends to whom he has endeared himself by 
many atti'active traits of character. He has left on record opin- 
ions which have proved most instructive and helpful to the bar. 

Since the last paragraph was written Judge Pierson has quali- 
fied and taken his seat on the bench. He had long experience 
on the trial bench in a populous district, in which there is an 
exceptionally able bar, and the enthusiastic support he received 
where he was best known is strong testimony to his professional 
and moral fitness for the position which he holds. 

The promotion of Associate Justice Phillips to the Chief Jus- 
ticeship was more than perfunctory compliance with established 
custom. It was the award of deserved honor to a man who had 
as Associate Justice demonstrated his ability to meet the de- 
mands of the position in such way as to preserve and perpetuate 
the exalted traditions of the court, and who as Chief Justice 
challenges the admiration, and commands the respect and con- 
fidence of the bench and bar of Texas. 

Since the foregoing paragraph was written, it has become known 
to me that my connection with the Commission of Appeals will 
in all probability terminate at an early day, and for that reason 
I feel at liberty to express myself concerning the Chief Justice 
with greater freedom than I should have done had this been 
written a year earlier, or than I would do were my terra of office 
to be extended. 

Since he, in the last analysis, is vested with the power and 
charged with the duty of passing upon my work, were I to be 
continued on the court anything I might say might be attributed 
to unworthy motives. 

I have never been on terms of personal intimacy with him, 
and during the nineteen months that I have been a member of 
the Commission of Appeals, have been in his office only a few 
occasions. My visits have never extended beyond a few minutes, 
given to the discussion of a case, or cases, in which the record 
had been assigned to me. I am under no personal obligation to 
him, except for the patience and courtesy which he has mani- 
fested towards me with relation to my official work, which I 
here gratefully acknowledge. 

He has not always agreed with the conclusions I have reached, 
and in many instances has convinced me that I had fallen into 
error. 

I make these preliminary statements in order to show that I 
write from a wholly impartial and impersonal point of view. 



200 GOVERNORS WHO HAVE BEEN 



The mind of the Chief Justice is one of crystalline clearness, and 
he penetrates quickly to the very core of every case, and by rea- 
son of his strong intellectual endowment, and thorough famil- 
iarity with fundamental legal principles, he is able to state the 
reasons of the Supreme Court for granting the writ of error, in 
any case, with a clearness and terseness that would be impossible 
if he were a lawyer of only average ability. 

I was very forcibly impressed with his ability to state in con- 
crete and condensed form controlling legal principles, by the 
memorandum prepared by him in granting the writ in a very 
recent case. The original case grew out of a very novel state of 
facts, and was one of great importance. There have been a few 
cases similar to it in Texas, but upon the whole it was in large 
measure a case of first impression, yet on less than a half page 
of letter paper he set forth every principle of law applicable 
to the question at issue, with such luminous clearness that the 
member of the Commission to whom the record was assigned had 
but little to do beyond setting forth the facts and the conten- 
tions of the opposing parties, and state the conclusion reached 
in harmony with the memorandum prepared by the Chief Justice, 
in doing which he copied the memorandum in full. 

It is known of all men that for three quarters of a century 
the position of Chief Justice of the Supreme Court of Texas has 
been, at all times when the government of the State was under 
the control of its own people, fdled by men of the first order of 
ability, but in my judgment no man who has held that exalted 
position was intellectually the superior of the present Chief 
Justice. 

I am aware that this statement expresses a high measure of 
praise, but it is the statement of my deliberate and sincere con- 
viction. Were it not, it would not have been made, for I have 
not written herein a line, or word, that I did not believe to be true. 

I am under the impression that Judge Greenwood did not seek, 
or expect appointment to the Supreme Court Bench, but that 
Gov. Hobby tendered him the position without solicitatioh on 
his part. 

He has abundantly justified the good opinion of his friends 
and the judgment of the Governor. It is to be regretted that his 
worthy father could not have lived to see the son he trained in 
the way of the law, take his place on the bench of the Supreme 
Court of his native State. 

Of the thirty-eight men who have occupied positions on the 
Supreme Bench of Texas only seven are living, and three of 
these constitute the present court. Of the ex-judges the four 
living are Judges Williams, Ramsey, Dibrell and Hawkins. 

Writing in the light of my limited experience as a member of 
an adjunct branch of the Supreme Court, engaged in doing the 



AND OTHER PUBLIC MEN OF TEXAS 201 

same character of work that Supreme Court Judges are required 
to do, I wonder that any are living. It is a matter of surprise 
to me how men retain their mental and physical vigor, who re- 
mained on the bench as long as did Judges Gaines and Brown. 

In this day of stenographers and typewriting machines, it is 
also marvelous to me how the original judges of the Supreme 
Court, who had no such labor and time-saving devices at hand, 
could have done so much and such arduous and valuable work, 
and could have written such enlightened and profound opinions 
with such limited libraries. 

Only a few days ago one of my colleagues in the course of what 
I consider a very able opinion harked back 74 years to the first 
volume of Texas Reports and found in the case of Sutherland 
vs. DeLeon a most apposite authority in support of his conclu- 
sion in a present day question of great difficulty. 

There must needs be enduring vitality in an opinion rendered 
nearly three quarters of a century ago, when it is found applica- 
ble to a case involving large interests, which arose only in the 
Very recent past under entirely changed legal, industrial, and 
social conditions. 



202 GOVERNORS WHO HAVE BEEN 

CHAPTER XXIX 
THE SUPREME COURT ON ITS OWN DISQUALIFICATION. 

The reports of the Supreme Court of Texas disclose that in a 
number of cases one or more of the judges have declined to sit 
in cases to which certain life insurance companies were parties, 
on the ground that the judge or judges so recusing themselves 
were policy holders, holding policies which participated in the 
earnings of the company. 

It may be that the position taken is sound in law and in con- 
formity with the meaning of the Constitution (Section 11, Art. 
11), hence is mandatory on the judges, but I am sure that there 
is not a lawyer in Texas who would have raised the slightest ob- 
jection to any judge of the "Supreme Court of Texas," using that 
phrase in the sense in which I use it, who has been on the bench 
in the past, or who is on that bench now, sitting in any case to 
which any insurance company was a party, if the judge held nol 
only one, but a dozen policies in it. 

Without examining the constitutional provision the thought 
is suggested to the mind of every lawyer that for a Supreme 
Judge to recuse himself on such a ground gives the Constitution 
a very strained construction; yet such action evidences that del- 
icate sense of judicial propriety which is instinctive in gentle- 
men and is always commendable. 

It is in striking and gratifying contrast to the action of the 
Supreme Court of one Northwestern State beyond the "Rockies". 

A law was enacted which allowed each of the judges who after 
his election changed his actual residence to the Capital, the sum 
of $50 a month in consideration of the increased expense of 
living and of his expense of traveling to and fro from such legal 
residence. 

The State Auditor refused to issue the warrants, whereupon 
one of the judges instituted a proceeding for mandamus to re- 
quire him to do so. The action was brought in the Supreme 
Court. It seems that there was no law authorizing the appoint- 
ment of special judges in that State as there is in Texas. This 
being true, the court had either to hear the case or lose $50 a 
month while on the bench. They heard it, and issued the man- 
damus and got the money. 

There was a lawyer in that State who was of the opinion that 
the court had no right to do what it did. Therefore he published 
the opinion in pamphlet form with many references to author- 
ities as foot notes. The publication is before me as I write. 

The lawyer disclaimed any intent to impeach the integrity 
of the court in which he expressed entire confidence, or even 
to be discourteous, and it seems to me that he proceeded to do in 
a courteous way what he did, and he did it well. He protested per- 



AND OTHER PUBLIC MEN OF TEXAS 203 

sonal esteem for every member ofv the court. He said he was not 
attacking the court, but the system, and said, "If we have not, 
as it appears we have not, placed it beyond the power of the 
judges to sit in their own cases, then as citizens we should do so." 
I agree with him. 

His deference and courtesy did not, it seems, operate as an 
offset to his boldness, since the court fined him $500, which he 
told me he paid. 

I do not believe the Supreme Court of Texas would have sat in 
such a case if the monthly stipend provided by the law had been 
$5,000 a month of instead of $50. 

The members would have waited till some constitutional or 
statutory provision had been enacted, by the terms of which 
a special court could have been constituted. 

I have had the experience of trying one case (on the criminal 
docket) in another State, and have attended court proceedings 
and seen Supreme Courts of other States, and in every instance 
had my respect for the law and forms of procedure, and the 
courts of Texas increased. 



204 GOVERNORS WHO HAVE BEEN 

CHAPTER XXX. 
THE COURT OF CIVIL APPEALS. 

The Courts of Civil Appeals are so numerous, and the changes 
in their personnel have been so many, that to deal with the names 
of all the judges of them would extend this modest volume far 
beyond reasonable limits, which point I fear it has already 
reached. 

Except the Court at Galveston I have appeared very rarely be- 
fore any Court of Civil Appeals, and have never been on terms 
of very intimate friendship with any of the early judges of those 
courts except Chief Justice C. C. Garrett of the First District. 

He and I were college mates at Washington and Lee University 
where he won the highest possible distinction as a student. He 
was a laborious, studious man, and highly educated, and while he 
was devoid of any of the gifts of a public speaker, wrote ad- 
mirable opinions, and was a most efficient and capable judge. 
As I recall no judge on the Civil Appeals bench had a less number 
of writs of error granted against his opinions. 

He was a man of exceptional purity in his private life, and in 
every way a most attractive gentleman for whom I had a deep 
attachment. His death — I believe in the summer or fall of 1905 
— caused me sincere sorrow. I have frequently recalled with a 
smile my only appearance before the Fort Worth Court when my 
friend I. W. Stephens, also a Washington and Lee man, was a 
member of that court. 

A merchant had bought goods when, as my client alleged, he 
knew he could not pay for them. I contended as the law is laid 
down in Talcott vs. Henderson, 31 Ohio State Reports, "that in- 
ability to pay, is the legal and logical equivalent of intention not 
to pay", and sued to recover the goods. 

Counsel for appellee, before the argument began, asked me how 
I expected to accomplish anything by my appeal, when the 
judge in the trial court sitting without a jury had found there 
was no legal or moral fraud. I replied that the judge could not 
by any ruling or holding transmute "chips and whetstones" into 
assets, or falsehoods into truths. 

When the facts had been presented by me, and counsel for ap- 
pellee began his reply. Judge Stephens in his slow and somewhat 
drawling tone said, "I am an unworthy member of the Methodist 
Church, and in the discipline of that Church it is said in effect 
that to buy what you have no reasonable expectation of paying 
for ain't honest." Counsel for appellee did not recover from the 
force of that remark, and I secured reversal and rendition, and 
got my money. 

The retirement of Judge Stephens from judicial service a few 



AND OTHER PUBLIC MEN OF TEXAS 205 

years ago was a distinct loss to the bench of Texas. He had de- 
monstrated legal and judicial ability of the highest order. 

The only time I recall appearing before the San Antonio Court 
Chief Justice James and Associate Justices Fly and Neill com- 
posed the court. Justice Neill was very deaf, and used a long ear 
trumpet, leaned far over towards the table behind which counsel 
stood when addressing the court, and his trumpet extended still 
further out. 

I was engaged in a frial before the jury on a lower floor of the 
Court House, and announced I would consume only fifteen 
minutes of the court's time, and I kept my promise, and secured 
a reversal of the judgment. 

Both those able lawyers and most efficient judges, John H. 
James and H. H. Neill, have passed away, and of the original 
court. Justice Fly (now Chief Justice) alone remains. He has 
for 28 years adorned the bench, and made a record as judge of 
which he has the right to be proud. 

Many of the judges of the courts of Civil Appeals who by rea- 
son of resignation or by death, or by failure to be re-elected are 
no longer a part of the courts, I did not know, and a number of 
them now on the bench in portions of the State in which I have 
never lived, and have but little acquaintance, I have never seen. 

Justice H. Clay Pleasants who defeated me for the nomination 
in 1892 served something less than seven years before his death, 
but left behind him a record of most valuable service. 

Gov. Sayers very wisely apcointed his son, Robert A. Pleas- 
ants, successor, and he for more than 21 years, much of the time 
as Chief Justice, has performed the duties of the exalted and ex- 
acting trust with a high degree of efficiency. 

As I recall Hon. W. M. Key, Presiding Judge of the Third Court 
of Civil Appeals, Hon. W. S. Fly, Presiding Judge of the Fourth 
Court, and Hon. Anson Rainey, Presiding Judge of the Fifth 
Court, are now the oldest judges of the Civil Appeals Court in 
point of service. 

The bar is indebted to all of them for many very instructive 
and helpful opinions. 

If I am not mistaken all of them have passed the quarter cen- 
tury mark of service. Justices Rainey and Fly were, I believe, 
appointed by Gov. Hogg. Judge Rainey was both Senator and 
Judge in the Ellis County District, but he married an East Texas 
lady, and if East Texas gets into the family, and the head of it 
goes out after an office, he generally gets it. 

Genealogical research has revealed that East Texas people are 
descendants of the tribe of Eli, for they "get there". 



206 GOVERNORS WHO HAVE BEEN 

CHAPTER XXXI. 
THE COMMISSION OF APPEALS. 

In writing of the Commission of Appeals I do so as if I had 
no connection with that tribunal, except insofar as such connec- 
tion as I have enables me to write advisedly, and mean to be un- 
derstood as referring only to the other members of that judicial 
body. 

The bar often feels that disposition of the business placed in 
the hands of the Commission is very slow, and that cases might 
be decided much faster. 

There is no doubt that such is the fact, if speed be deemed 
more important than accuracy. To decide the questions which 
are contained in the records that come before the Supreme Court, 
and before the Commission rapidly, and at the same time with 
that accuracy which is essential to give them any value as prece- 
dents, is impossible. 

If the record is to be skimmed over, and the work slurred 
over, it were better that no decision at all be made. If the bar 
knew the size of some of the records they would be more patient. 
Every case has gone through the District Court and the Court of 
Civil Appeals with a consequent constant accumulation of papers. 

The records not infrequently contain a hundred thousand words 
— a number greater than is contained in an ordinary novel — 
often a statement of facts is equally as long or longer, to which 
is added briefs, exceeding in some instances 200 pages, which 
are followed by typewritten arguments, and supplemental ar- 
guments, and not infrequently the authorities cited are more 
than a hundred, and sometimes more than 200. 

I recall a case, the record of which was assigned to me, in 
which the application for writ of error contained over 80 pages 
of typewritten matter, and which was followed by a typewritten 
argument nearly as long, or longer, and those papers had been 
preceded by a printed brief (?) of 160 pages, on paper an inch or 
two longer than the usual brief is printed on, and there were 
more than 40 assignments of error and authorities in proportion. 

Any lawyer with any considerable experience will appreciate 
the time and labor required to analyze the contents of such a 
mass of papers and extract the wheat from the inevitable chaff. 
When that had been done in the case referred to, the opinion did 
not exceed a column in length. I know that the judges I am 
associated with examine every record, and every question, with 
scrupulous, painstaking care. If the question is one of unusual 
difficulty, and more than ordinary public interest, both sections 
of the court consult together. 

Within the recent past five cases had been assigned, two to one 
section and three to the other, all involving the same difficult 



AND OTHER PUBLIC MEN OF TEXAS 207 

question. A writ of error had of course been granted in every 
case, as the Courts of Civil Appeals had differed upon the ques- 
tion. The entire Commission consulted upon the question, and 
it was debated from every angle. 

Necessarily the Supreme Court handles the cases before they 
reach the Commission, and nothing is surer than that it examines 
with most intelligent and scrupulous care the work of the Com- 
mission, and when to that work is added the work of passing on 
applications for writs of error, and the decision of cases reserved 
for action directly at its hands, more speedy disposition of 
cases is impossible. 

From nine Courts of Civil Appeals new records are being sent 
to the Supreme Court every day, and no three men, or no nine 
men on earth, with a proper conception of the responsibility 
resting upon them, and who desire to arrive at a correct conclu- 
sion could do more than is being done. 

If there was no other reason for extreme care, the courtesy and 
respect due the Courts of Civil Appeals would make it an im- 
perative duty to review their work with open minds and with 
painstaking deliberation. To do less would be a failure to do full 
duty on the part of the Supreme Court and the Commission. Of 
course wlien a single brief cites a hundred or more authorities, 
the court does not attempt to examine them all, and the citation 
of such a number is inexcusable, as is indeed the citation of more 
than a few well considered and recognized authorities under 
each assignment of error. On this point I am of course express- 
ing only my personal views, as none of my associates on the 
bench have seen or know what I have written. 



208 GOVERNORS WHO HAVE BEEN 

CHAPTER XXXn. 
ALEXANDER WATKINS TERRELL. 

Whenever the judiciary of Texas is mentioned the name of 
Alexander Watkins Terrell immediately occurs to everyone, for 
while he was never upon the Supreme Bench, and so far as I 
have ever heard, never aspired to the position, he was for many 
years reporter of its decisions. 

I heard the late Wm. Pitt Ballanger say that in the course of an 
argument he was making before the Supreme Court of the United 
States on one occasion he was asked from what authority he was 
reading or quoting. He replied, "from a Texas Report by Judge 
A. W. Terrell, who as a reporter has no superior in the United 
States". 

No higher compliment can be paid his successor, the present, 
most efficent reporter, than to say he has maintained the, if I 
may coin a word, "Terrellean" standard. 

Judge Terrell went upon the bench in the Austin District when 
a very young man, I believe when he was under thirty years of 
age, and filled the position with a very high order of ability. 

He was a wonderful conversationalist. He had command of 
faultless English, and framed with ease beautifully flowing sen- 
tences. He was equally at home in the law in civil and criminal 
cases, and Texas never had a more efficient legislator. He was, 
too, a cultured scholar, and a delightful orator. 

He ran easily the whole gamut of intellectual achievement. 
His address upon the occasion of the removal of the remains of 
Stephen F. Austin to Austin is a most polished, eloquent, and in- 
structive example of memorial oratory. 

He was once entertaining a distinguished bishop of the Episco- 
pal Church and me, with some most interesting accounts of his 
experiences in Turkey to which country he was for four years 
minister. He said, "Bishop, they have trouble over there, be- 
cause when the fanaticism of the Armenians, who have been 
Christians for 2,000 years, and Mohammedan fanaticism clash, 
there is bound to be, there is — er — well, there's h — 1 to pay. I 
beg your pardon Bishop, but no other term will express what I 
mean." The Bishop seemed to think that Judge Terrell was not 
wholly infelicitous in stating the situation. 

The Judge had the commendable ambition to go to the Senate 
of the United States, and very reasonably desired to keep in fa- 
vor with the large German vote in his district. 

He made a speech o"" day at some festive gathering in Austin, 
and next day he met Judge James E. Shepard, an old friend, who, 
as Hamlet said of Yorick, "was a fellow of infinite jest and most 
excellent fancy." He said, "Terrell, your political cake's all 



AND OTHER PUBLIC MEN OF TEXAS 209 

dough". "Why?" said the Judge in alarm. "Why yesterday in 
your speech you called the Germans 'blatherskites'." The Judge 
protested he did nothing of the kind. Judge Shepard said, "do 
you read German?" The judge said he did not. "Then" said 
Judge Shepard, "I will translate it for you. There is the word 
'blumengarten,' that means blatherskites." 

Judge Terrell took the paper and went at once to the office of 
publication and demanded an explanation. He was informed 
that he had been made the victim of jest — that the word meant 
"flower garden," or something of the kind. 

He was immensely relieved. The jest was made richer by the 
fact that Judge Shepard knew no more about reading German 
than did Judge Terrell, but he enjoyed the joke to the latest day 
of his life. I have heard him tell it. 

Judge Reagan and Judge Terrell were originally and for many 
years opposed to prohibition as a governmental policy. That 
they were conscientious and rested their objection on what they 
conceived to be fundamental grounds there is no doubt. That I 
wholly differed from them never led me to question their sin- 
cerety. Subsequent events of such nature as that to set them 
forth might be deemed an infringement of the proprieties, 
caused both men to change their views. 

I met Judge Terrell on one occasion on the street in Austin 
and the name of a prominent Texas lav/yer whom he greatly ad- 
mired was mentioned, and he said to me, "Norman, when I see 
such a man as he was who has just been spoken of, not only fig- 
uratively, but literally in the gutter, if it were not that the policy 
of prohibition is so opposed to my conception of democratic 
principles and the limits of governmental authority, I'll swear 
I would take the stump against the damnable liquor traffic." 

In their later years both he and Judge Reagan did take the 
stump against it. Both were sober men, but they struck in de- 
fense of others. 

In the course of a speech in favor of prohibition on one occasion 
Judge Terrell said, "The thorn which has pierced my soul was 
borne by the tree I nurtured." 

The reason for his action can be safely inferred from that im- 
pressive metaphor. 

He was born and reared in, or near, Columbia, Missouri, and 
told me once this most interesting story. There came to Colum- 
bia a traveling theatrical company playing a Shakespearean 
repertoire, among other plays, Othello. 

The curtain was ready to rise one night, but the actor who 
took the role of Othello was not on hand. He was a large, black 
haired, black eyed, handsome man of great dramatic ability by 
the name of Parsons. A hurried search was set on foot, and one 
of the searching party happened to pass a Methodist Church in 



210 GOVERNORS WHO HAVE BEEN 

which a revival was being held. In some way he happened to 
learn that Mr. Parsons was in the Church. The searcher for the 
truant tragedian went to the door and asked an usher to tell Mr. 
Parsons to come out; that the theatre was full, and the curtain 
ready to go up. The message was delivered, whereupon Mr. 
Parsons arose, and in the very tones, and with the very gesture 
he had often used on the stage, said, "Othello's occupation's 
gone," and sat down. He never entered a theatre again, but 
joined the Church and C. B. Parsons became one of the greatest 
preachers in all the ranks of Southern Methodism. 

It has been said that "the mighty gates of circumstance often 
turn on smallest hinge", and the results which flowed from that 
incident illustrate how forcefully the incidents and events in 
one life may affect the lives and destinies of others. 

When C. B. Parsons became a minister he settled in Kentucky. 

Some reader of this may recall that in 1876-77 the great demo- 
cratic editor, Henry Watterson, for many years the most influ- 
ential private citizen of the whole South, if not of the nation, 
served six months of an unexpired term in Congress. He served 
out the term of Hon. Edward Young Parsons, a brilliant young 
democrat of Louisville, who died; and I have been informed the 
deceased Congressman was a son of C. B. Parsons, the great 
Methodist preacher. 

It so happened that the currents of human destiny which had 
their source in an humble Methodist Church in Missouri, so flowed 
that they carried into Congress the son of the traveling "Othello", 
who was converted from an actor into a preacher, almost as 
suddenly as Saul of Tarsus was transformed on the Damascus 
road, from a persecutor of the saints into the ablest exponent and 
defender of the Christian faith the world has ever seen. 

There have been many men in Texas who took seemingly 
deeper hold on the popular heart than did Alexander Watkins 
Terrell, but there has not been in her limits a more cultured, 
accomplished, and efficient man, or one socially more delightful 
and instructive. 



AND OTHER PUBLIC MEN OF TEXAS 211 

CHAPTER XXXIII. 
COURT OF CRIMINAL APPEALS. 

The Court of Criminal Appeals was created by the Constitution 
which was framed in September 1875, and adopted by popular 
vote in February, 1876, at which time a full complement of State 
officials was elected. The Constitution went into effect in April, 
1876. 

The State Convention of the Democratic party was held in Gal- 
veston, in January, 1876, and the Hon. Malcolm D. Ector of Mar- 
shall, Hon. John P. White of Seguin, and Hon. Clarence M. Wink- 
ler of Corsicana were nominated as candidates for a seat on the 
bench of the new court, and were of course duly elected. 

As has been said in a previous page, the spirit of the Con- 
federacy brooded over the deliberations of the convention, and 
no man whose record as a confederate soldier was not free from 
blemish had any chance of securing a nomination. 

Gen. Ector had been a Brigadier General in the Southern Army 
and had lost a leg in one of the bloodiest battles fought in Ten- 
nessee, so he bore visible proof of his devotion to the Southern 
cause. He was one of the district judges who was elected in 
1866, and who were removed "as impediments to reconstruction" 
in 1867. 

He was a gentleman of exalted personal character, and rendered 
most efficient service as an appellate judge. 

Judge White had also rendered honorable service as a soldier, 
and had demonstrated a high order of ability as district judge. 

Col, Winkler's character and services are dealt with on an- 
other page. 

The work of the court over which Judge Ector presided proved 
that the convention and the people had chosen wisely. 

The personnel of the court remained unbroken till Oct. 29, 
1879, when Judge Ector died. Gov. Roberts appointed Hon. George 
Clark of Waco to succeed him, an appointment which was in 
every way most admirable. 

The court as constituted after Judge Clark's appointment was 
called upon to pass upon the case of the State vs. Abe Roths- 
child, who had been convicted of the murder of a woman called 
"Diamond Bessie." 

The case had aroused statewide interest, and the defendant 
having been represented by counsel who stood in the very front 
rank of the bar, the conviction was hailed as a great triumph of 
the law. 

The conviction was reversed and it fell to the lot of Judge 
Clark to write the opinion. The reversal met with disapproval 
as widespread as was the approval given the conviction. Whila 



212 GOVERNORS WHO HAVE BEEN 

of course Judge Clark was responsible to no greater extent than 
were his colleagues for the conclusion reached and, the result of 
the appeal, yet the cry of "Give Us Barabbas" is nearly 2,000 
years old, and the maddened populace always demands a victim, 
by whose sacrifice it seeks to appease its wrath. 

The opinion is a masterpiece of logical and unanswerable rea- 
soning, couched in faultless English, and no honest and unbiased 
man, capable of passing upon such a question can read it today 
in Vol. 7, p. 519, of the Court of Criminal Appeals Reports, with- 
out reaching the conclusion that it correctly declares the law. 
Reading between the lines of the last paragraph, it is evident that 
Judge Clark had a premonition that the action of the court would 
meet popular disapproval. His language was: 

"The appellant, stranger though he is, and guilty though he 
may be, has not had a fair and impartial trial, in that he was de- 
prived of the right of inquiry as to mode and manner of his pre- 
sentment, and was tried by a juror who had already prejudged 
his case." 

These are the words of a brave and honest judge who sitting 
in exalted judicial position and dealing with the solemn issue 
of life or death for a citizen had the courage to hold aloft the 
constitution and the book of written law, and speak to the waves 
of popular passion which beat fiercely about the defendant, as 
the Master spake to the tumultuous waves of the Gallilean sea, 
saying: "Peace; be still". The emoluments of the office which 
he held offered no attraction to Judge Clark, but he could not 
afford to retire under the fire of popular disapproval, so he be- 
came a candidate for nomination before the convention which 
met in Dallas on August 10, 1880, but was defeated by Hon. James 
M. Hurt, whose reputation as a lawyer in the field of the crimi- 
nal law did not at that time extend beyond the southern boundary 
of North Texas, yet he proved to be a very able judge. 

He possessed a mind of great logical power, and reasoned out 
of his decisions with luminous clearness. 

He went upon the bench of the court before the election in 
1880, Judge Clark having resigned October 1st, and Judge Hurt 
being the democratic nominee was appointed to the position, and 
by re-election in 1886 and 1892, he held the place until Dec. 31, 
1898. He was a very democratic, amiable, approachable man, 
and was especially kind and considerate to young lawyers who 
appeared before the court. 

It is said, with what measure of truth I do not know, that upon 
one occasion a young lawyer from some remote country district 
appeared before the court on behalf of the appellant. It was his 
first experience of the kind, and he became embarrassed by the 
questions put to him by Judge Hurt. The judge observing that 
fact said in his kind and fatherly tones, "My young friend, don't 



AND OTHER PUBLIC MEN OF TEXAS 213 

get flustrated. I don't mean to embarrass you by asking you 
questions. I mean to help you. Just go ahead and talk like you 
were talking to a Justice of the Peace down where you live." 
The young fellow promptly replied, "I can't do that, your honor, 
without running the risk of being fined for contempt of court, 
because if I were talking to a Justice of the Peace down where 
I live and he were to interrupt me with questions like you have 
done, I would tell him to shut his d — n mouth and not bother 
me." The reply "brought down" the court, and of the three. 
Judge Hurt's laughter was loudest. 

Hon. Clarence M. Winkler died May 13, 1882, and Gov. Roberts 
appointed Hon. Sam A. Willson of Cherokee County as his suc- 
cessor. Judge Willson, like Judge Ector, was one of the victims 
of the iniquitous policy miscalled "reconstruction." He was a 
gallant confederate soldier in Hood's Brigade, and led his com- 
pany many a time and oft into the deadliest hail of battle. He 
was, too, a lawyer of marked ability and a citizen of exalted 
character, and was admired, honored and beloved. 

In the first volume of Wharton on Criminal Evidence, page 491, 
in a note under the head of Res Gestae, will be found the language 
quoted below used with reference to the Court of Criminal Ap- 
peals of Texas, when it was composed of Judges White, Hurt and 
Willson: "This court is unquestionably the ablest criminal court 
in the United States." 

Judge Willson resigned February 1, 1891, and was appointed 
reporter of the court February 6, 1891. 

He held that position at the time of his death on January 24, 
1892. The memorial tributes paid Judge Willson which are to be 
found in Vol. 30 of the Reports of the Court, deserve to be read by 
every layman, as well as every lawyer. 

His son, Hon. Samuel Priest Willson, has ever since the creation 
of the Court of Civil Appeals for the 6th Supreme Judicial Dis- 
trict, the sessions of which are held at Texarkana, been the Chief 
Justice of that court. In that position he has demonstrated that 
the mantle of the father descended on worthy shoulders, and the 
names of both the father and the son have added luster to the 
judicial annals of Texas. 

Gov. Hogg on February 5, 1891, appointed Hon. W. L. Davidson 
as successor to Judge Willson. Judge Davidson had filled for a 
number of years most acceptably the position of Assistant Attor- 
ney General, and his selection to succeed Judge Willson was most 
fortunate for the State. 

He remained a member of the court for a few days less than 
30 years. While the material was being gathered for this sketch 
of the court, the people of Texas were profoundly and distress- 
ingly shocked on the morning of January 25, 1921, to learn that 
he had been, in the twinkling of an eye, removed from the com- 



214 GOVERNORS WHO HAVE BEEN 

pany of his family and fellow oien by the hand of death. 

He had passed five years beyond the three score and ten years 
allotted as that span of life, beyond which "all is weakness and 
sorrow," but his intellectual powers were unabated and func- 
tioned in their pristine vigor, while his physical appearance 
would have led a stranger to believe that he was a score of years 
younger than he really was. 

His death caused statewide sorrow and to the memory of no 
man who has ever died in Texas were greater honors shown. 
The funeral cortege moved from the University Methodist Church 
in Austin to the State Cemetery, and in addition to the religious 
services held in the Church, Hon. Nelson Phillips, Chief Justice 
of the Supreme Court, delivered a memorial address which will 
ever remain as a classic. 

As a citizen, a soldier, a lawyer, a judge, and a man, Judge 
Davidson left behind him a stainless record. As a judge he was 
just, able, fearless, and was deaf to popular clamor. He was 
for 14 years presiding judge of the court, but on the 27th day of 
June, 1913, was removed from that position, an incident of which 
I shall have something to say on a later page. 

Judge John P. White resigned as a member of the court on April 
26, 1892, and Gov. Hogg appointed Hon. Eldred J. Simpkins of 
Corsicana as his successor. Judge Hurt was chosen as presiding 
judge May 4, 1892. Judge Simpkins was a cultured, scholarly 
man, and had been a most efficient State Senator, and was a 
lawyer of a high order of ability. He was elected to complete 
the unexpired term of Judge White in November, 1892, but was 
defeated for renomination by Hon. John N. Henderson of Brazos 
County, in 1894. Judge Henderson lost an arm on one of the 
battle fields of Virginia, where he bore himself most gallantly 
as a member of Hood's Texas Brigade. WTien it is said he be- 
longed to that famous command it is unnecessary to add that he 
w^ent where the fighting was fiercest. 

He had had the benefit of long experience both as district 
attorney and district judge, and in consequence was well fitted 
for a place on the bench of the Criminal Appeals Court. 

He remained a member of the court until his death on Decem- 
ber 22, 1907. 

Judge Hurt was not a candidate for re-election in 1898, and 
Judge M. M. Brooks of Hunt County was nominated at Galveston, 
and was elected in the November election. Judge Hurt retired 
on the 31st day of December, 1898. After the election of Judge 
Henderson and Judge Brooks the court was composed of these 
two gentlemen and Judge Davidson. Gov. Campbell appointed 
Hon. W. F. Ramsey of Cleburne to succeed Judge Henderson. 
I have been told that Judge Ramsey said that when he was ap- 
pointed, he really knew very little about criminal law, but his 



AND OTHER PUBLIC MEN OF TEXAS 215 



opinions did not disclose the fact. They are marked by forceful 
reasoning, and a clear conception of fundamental principles, and 
often were couched in terms of eloquence. He resigned January 
5, 1911, to take a place on the bench of the Supreme Court, in 
which position he added, if possible, to the reputation which he 
had won on the bench of the Court of Criminal Appeals. Hon. 
M. M. Brooks resigned January 1, 1910. 

He rendered most efficient service as judge. He is a man of 
ability and courage, and his opinions were clear, pointed and 
strong. His retirement was a distinct loss to the bench. Gov. 
Campbell appointed Hon. Felix J. McCord of Longview as suc- 
cessor to Judge Brooks. Judge McCord was for a number of years 
judge of the Tyler district, in which position he demonstrated 
marked judicial ability. He was assistant attorney general at 
the time of his appointment to the bench, and when this is 
being written is an honored and influential member of the 
Thirty-seventh Legislature. 

Hon. A. J. Harper of Limestone County qualified pursuant to 
election as a member of the court January 4, 1911, and Hon. A. 
C. Prendergast of McLennan County qualified on January 9, 
1911. The court was from that time until June 27, 1913, com- 
posed of Hon. W. L. Davidson, presiding judge, and Judges Pren- 
dergast and Morrow. 

On the date last named Judge Prendergast qualified as pre- 
siding judge. 

The removal of Judge Davidson from the position which he 
had so long honored was, it can be said, with entire truth, a sur- 
prise and shock to the bar and people. 

The suggestion had never occurred to the popular mind that he 
would not continue in that position as long as he remained on 
the bench. The members of the court are vested with the power 
of choosing their own presiding officer. This being true, it is 
obvious that two of the court must agree that either the third 
member, or one of the two, shall be chosen. If the latter plan 
is adopted necessarily one man must vote for himself, and with 
the vote of the other of the two, the third man if he has been 
presiding judge is removed from the position. 

The statute is an unfortunate one. There should be a Chief 
Justice of the Court of Criminal Appeals just as there is of the 
Supreme Court. If such was the case so unfortunate an incident 
as the removal of Judge Davidson could never occur. 

The change was made pursuant to power duly vested, but the 
possession of a right, or power, is one thing, while whether it 
shall be exercised and if so, how, is wholly another thing. Judge 
Davidson had filled the position of presiding judge with dignity 
and efficiency since the 2nd day of January, 1899, and had been a 
member of the court for more than 22 years, and was old enough 



216 GOVERNORS WHO HAVE BEEN 

to have been the father of either of his colleagues, and the public 
could see no reason why he should be displaced. 

There are certain proprieties and amenities which while they 
are not creatures of statute, their observance nevertheless is ob- 
ligatory upon all men, but the impulse of obedience to and ob- 
servance of them must be inborn and instinctive. It is not, and 
cannot be a matter of education. 

Violation of the obligation to observe them, invariably and 
evitably offends the popular sense of justice and propriety, and 
that was the effect which the removal of Judge Davidson had 
upon the minds of the people of Texas, and their disapproval 
found expression at the ballot box more than three years later, 
when one of the judges responsible for the change was defeated 
for re-election and his colleague did not offer for re-election. 

There is in the minds of the mass of the people an inherent in- 
stinctive sense of propriety and justice. It may be said to be a 
natural impulse or emotion which cannot be defined, and which 
is defiant of analysis, but its existence is certain. If it be of- 
fended it wreaks upon the offender inevitable penalty. 

Many readers of these pages will recall that in 1904 Gov. John- 
son of Minnesota was a candidate for re-election. He had been 
once, perhaps twice, before elected in a republican state. Mr. 
Roosevelt was a candidate for president and most likely if that 
had not been done which was done, as is hereinafter set forth. 
Gov. Johnson would have been defeated. 

Some ardent republican, zealous for the success of the republi- 
can gubernatorial ticket, conceived the idea of digging up out 
of the records of a county poor house a certificate showing that 
the father of Governor Johnson had died an inmate of that in- 
stitution. The certificate was lithographed and copies in that 
form were scattered by millions over the state of Minnesota. 

Governor Johnson had risen by sheer force of high personal 
character and great intellectual ability, from bitter poverty and 
deep obscurity, to the position of governor and had maintained 
always a stainless reputation and the employment of such means 
to compass his defeat stirred the people to deep indignation. 
Its effect was just the contrary of what was expected. The people 
gave expression to their resentment of such ghoulish and in- 
iquitously unjust action at the ballot box, and while Mr. Roose- 
velt carried Minnesota, by 70,000 majority. Gov. Johnson was re- 
elected by 30,000 majority, showing that the certificate which 
blazoned forth to the world a fact intended and calculated to un- 
justly harm a worthy citizen and faithful public official, cost 
the republican candidate 100,000 votes. 

Judge Davidson became presiding judge again in 1917, and so 
remained until his death. Hon, W. C. Morrow of Hill County, a 
lawyer of demonstrated ability^ who had as State Senator ren- 



AND OTHER PUBLIC MEN OF TEXAS 217 

dered most efficient service, qualified as successor to Judge Har- 
per on December 31, 1916, and Hon. O. S. Lattimore of Tarrant 
County was elected in 1918, and qualified January 1, 1919. 

Judge Lattimore's fitness for the place was never questioned, 
and he has proven that his selection was in every way most 
felicitous. 

Gov. Neff appointed Hon. F. L. Hawkins of Waxahachie to suc- 
ceed Judge Davidson, and the appointment met, so far as I have 
heard, unanimous approval. I have but the slightest acquaintance 
with Judge Hawkins, but Gov. NefF practiced before him in the 
Waxahachie district of which he had been judge for a number 
of years, and was therefore in a position to judge of his fitness 
for the appellate trial bench, and it may be safely assumed the 
Governor made no mistake in the appointment. 

Since the last paragraph was written Judges Lattimore and 
Hawkins chose Judge Morrow as presiding judge, which action 
was obviously in accord with the requirements of propriety and 
justice. 

It is a matter of pride and gratification to the bar of Texas 
that the opinions of the Court of Criminal Appeals of Texas 
are so often and so widely quoted, and in the northern and north- 
eastern states, where such radically erroneous and such disparag- 
ing opinions are entertained concerning Texas courts, it must 
have been a profound surprise to the bar to read the words of 
one of the greatest, if not the greatest of American writers on 
criminal law, that the Criminal Court of Appeals of Texas was, 
when composed of Judges Hurt, White and Willson, the ablest in 
the United States. Such a tribute has never before, so far as my 
reading has revealed to me, been paid any state court, civil or 
criminal, and it is one of which the bar and people of Texas 
should be very proud. 

1 have not intended in dealing with the matter of Judge David- 
son's removal, and so to speak, demotion, to give offense or do 
injustice to any man, but such an incident is a legitimate theme 
to be discussed. I can in no way better illustrate my personal 
views with reference to the course to be taken in such a situation 
than by setting forth my own action under similar conditions. 

When on the night of November 22, 1919, Governor Hobby 
called me at my residence in Houston by 'phone and without 
the slightest previous intimation that he purposed so to do, ten- 
dered me a position on the Commission of Appeals, I did not 
know whether the position of presiding judge was one of ap- 
pointment by the Governor, or whether the selection rested with 
the court. 

I had never read the law creating the Commission. I imme- 
diately wrote Judge Sonfield, the only member of the Commission 
with whom I was acquainted, and said to him that if the fact 



218 GOVERNORS WHO HAVE BEEN 

that I was to succeed Judge Montgomery, the presiding judge, 
gave me the right to demand that position, I hoped such course 
was not mandatory. That it appeared to me that justice and pro- 
priety required that one of the two gentlemen who had been col- 
leagues of Judge Montgomery should take the position, and that 
I would not take it, unless the law made it obligatory on me to do 
so. I was delighted to find that such was not the case, for I 
should have been most reluctant to have exercised the right. 



AND OTHER PUBLIC MEN OF TEXAS 219 

CHAPTER XXXIV. 

THE TRAGEDY, THE PATHOS, AND THE HUMOR OF THE 
COURT ROOM. 

The remainder of this humble volume may not be exactly ger- 
mane to my title theme. 

There may be some who will think of it as a professor in a 
theological seminary thought about a trial sermon which an es- 
teemed friend of mine, now a clergyman in Houston, preached 
when he graduated from the theological seminary. 

The old professor said, "Henry, I have but one comment to 
make on your sermon. If your text had had the smallpox 
your sermon never would have caught it." 

It may be that there is no direct relevancy between what I 
have said already, and what I may say hereafter, but it will do 
no harm to set down and perpetuate either amusing or pathetic 
incidents, and perhaps some reader may be interested. Where 
the instances are stated of my own knowledge, I know them 
to be true, and where they are stated upon information of others, 
I believe them to be true. 

The court room is supposed to be a place where all the pro- 
ceedings are conducted with great dignity and decorum, and such 
is usually the case, as it should be, but often fun and laughter 
relieve the stress and strain of the proceedings, and should not 
he sternly rebuked, because no offense is intended. Some of the 
most humorous, and some of the most pathetic incidents that 
have ever occurred, have occurred in court rooms. 

It is a theatre where both comedies and tragedies are enacted, 
and joy and sorrow, hope and despair there often find expression. 
We weep in sorrow and weep for joy. The fountain of grief, 
and the fountain of gladness lie close together; and the tragic 
and the comic are often elements in the same judicial drama. 

I suppose every judge can recall one or more cases, the inci- 
dents of which are more deeply impressed on his mind and 
memory than are those in other cases. 

The memory of one case still abides with me. I had been reared 
in the same community with the defendant, and his relatives and 
my family were friends. He was charged with murder by poison. 
I had changed the venue twice on my own motion, and was re- 
warded for the last change by being hung in effigy in the town 
where the offense was alleged to have been committed. The 
indignity gave me no concern personally, but I had been reared 
in the town, and my aged mother lived there, or at least was there 
at the time, and it carried deep distress to her heart, as she 
was more to me than life itself. I would, had conditions made 
it necessary, have continued changing the venue until the case 



220 GOVERNORS WHO HAVE BEEN 

reached El Paso. I personally went with two sheriffs and guarded 
the prisoner for 115 miles, and put him in the jail of a county 
outside my own district. 

My action aroused deep feeling against me, but I received a 
majority over two opponents in the election the next year. 

I trust the narrative may be properly broken just here, to say 
that whenever it is necessary to call a host of opposing witnesses 
to determine whether a defendant can, or cannot, obtain a fair 
trial in any given county, that very fact proves in nine cases out 
of ten that he cannot; and the judge ought not to hear a single 
witness, but change the venue of his own motion. I could, per- 
haps, be properly termed a "crank" about fair trials. 

I will, without money, and without price, defend any man who 
it appears to me deserves defense, if it appears that he is not 
going to get a fair trial in the court. Three times at least in the 
recent past I have interested myself in behalf of the pardon of 
prisoners when I had never seen, and from whom, or from no 
one for them, did I have any agreement for remuneration, de- 
pendent upon success, for I would not take such employment. 
I acted on behalf of justice and for no other reason. I did not 
believe they ought to have been convicted, and they were 
pardoned. 

The counsel who had defended one of them asked me to read 
the testimony for, I believe he said, the defense. I said, "No, I 
will read it all," and I read and re-read it. 

I had never seen the negro defendant in my life, but I wrote 
the Board of Pardons and the Governor that the conviction was 
an outrage on a hard-working, respectable negro, who owned his 
own home, yet had been sentenced to the penitentiary for 20 years 
for killing a half drunken deputy constable who unlawfully 
assaulted him. I told the authorities in my letter that I believed 
the judge, had he the case before him again, would give the 
negro a new trial. 

The negro was pardoned. I never received, desired or expected 
a penny for what I did. I got a wronged citizen his liberty. 

I return now to the case in hand. 

An absolutely essential witness was the then Professor of Chem- 
istry in the University of Texas. At my own expense I wired 
an attachment for him. He was thoroughly qualified and a most 
cautious witness. 

He would not say that he examined the stomach of a party of 
the name used in the examination, or that he received the stomach 
from the sheriff of a named county. He said, "I do not know. I 
received a stomach from the hands of a man who said he was the 
sheriff of the county you name, but I do not know whose stomach 
it was, nor do I know who brought it to me. 

He then, with remarkable clearness and simplicity, and in Ian- 



AND OTHER PUBLIC MEN OF TEXAS 221 



guage utterly free from professional nomenclature, or scientific 
terminology, explained how and by what process he analyzed 
the stomach, and how he knew that the stomach contained 
strychnine, and when the State turned him over to the defense 
there was no possible doubt that he had found strychnine as he 
said. 

Somebody has said, "never dispute the right of way with a 
locomotive or take any chances with the hind parts of a mule." 
Josh Billings said, "Some folks keeps on borin' till they bore 
through and lose all the ile," and nowhere does that quaint philos- 
ophy find more frequent or distastrous confirmation than in the 
cross-examination of witnesses. 

If I had been defending I should have let the witness severely 
alone. He was absolutely impartial, and was an educated scien- 
tific man, who knew, as few men I have ever seen did, all the 
secrets in the sphere of analytical chemistry, and every pass 
made at him on cross-examination proved to be a boomerang, 
and intensified the effect of his testimony. 

It is folly to venture out against any intelligent, honest witness, 
who is telling the unvarnished truth. 

Counsel for defendant may have doubted that the chemist was 
doing so, or have doubted whether he could produce visible evi- 
dence of the results of the analysis, so the eldest man of the 
several counsel, who has now been dead for a number of years, 
said, "Did you find in that stomach strychnine in visible, palpable 
form?" or words to that effect. 

A faint smile lighted the face of the witness as he reached into 
the right hand lower pocket of his vest, and drew out two watch 
crystals with the concave sides glued together, and placing them 
between the thumb and forefinger of his left hand, turned them 
like a wheel, holding them up in plain view of the court, counsel, 
and jury, and as he was doing so, said to the interrogating coun- 
sel, "If you will kindly keep your eye on this you will see a 
powder falling from side to side. That powder is strychnine and 
came out of the stomach analyzed by me." 

The counsel returned to the attack, "How do you know that 
the powder between those two crystals is strychnine?" The 
witness said, "I reduced some of it to a liquid form, and injected 
the liquid into the hind leg of a frog, and the frog died in 20 
minutes with all the symptoms of strychnine poisoning." 

"I also burnt the powder in conjunction with (I think he said, 
but I may be wholly mistaken) permanganate of potash, and the 
result was a blue flame, and strychnine is the only substance 
known to chemical science that will produce a blue flame when 
so burnt." 

Counsel, undismayed, again renewed the attack, which seemed 
to me to be a most impolitic thing to do. He said with great 



222 GOVERNORS WHO HAVE BEEN 

earnestness and deliberation, "Do — you — sir — mean — to — tell — 
that — jury — that — you — found — enough — strychnine — in — that — 
stomach — to — kill — a — man ?" 

The witness seemed surprised at the question, and amused at the 
way in which it was put, as the evident implication was that the 
counsel did not believe he would commit himself that far, but the 
witness turned full front to the jury, and in a way that he seemed 
to intend as an imitation of the manner of speech of the counsel, 
said, "Yes — I — mean — to — tell — this — jury — that — I — found — 
enough — strychnine — in — that — stomach — to — have — killed — 
twenty — men." 

With what seemed to me far more of courage, than of tact or 
prudence, the counsel for the defendant put yet another ques- 
tion, "Do — you — sir — tell — that — jury — under — your — oath — as — 
a — witness — that — you — found — in — that — stomach — strychnine — 
sufficient — to — destroy — human — life — beyond — a — reasonable — 
doubt?" 

The witness, still sitting full front to the jury, said: "Yes, I — 
tell — this — jury — that — I — found — in — the — stomach — I — analyzed 
— strychnine — sufficient — to — destroy — human — life, — not — only 
— beyond — a — reasonable — doubt, — but — beyond — the — possibili- 
ty — of — a — doubt." 

That was the last nail in the structure of testimony. The verdict 
in three and one-half hours from one of the best juries I ever 
saw empanelled was guilty with the death penalty, and the pen- 
alty was carried out. 

I have often thought I should like to see some of the criminal 
lawyers who seem to find delight in trying to confuse expert 
witnesses, try their hands on that Professor of Chemistry. I have 
seen lawyers, who made a specialty of criminal practice, who had 
in all their lives learned less about the principles of law, than 
that modest professor knew in an hour about the principles of 
the profound science of chemistry . 

In the course of that trial I saw an exhibition on the part of 
one of the venire of moral courage, ingrained integrity, and sense 
of honor which deserves to be perpetuated. 

He asked me a few days before the trial about the case, saying 
he had been summoned on the venire and hoped he would not 
be accepted. I, of course, told him I could not talk with him about 
the case. 

When he took the stand and was called upon to answer the 
questions which, if answered in the affirmative would have re- 
lieved him from the duty he so sincerely desired to avoid, he 
was in evident mental distress, but slowly and in a manner that 
seemed plainly to say, "Oh, if I could only answer yes!" he slowly 
and hesitatingly answered, "No." 

He knew relatives of the defendant who were worthy people, 



AND OTHER PUBLIC MEN OF TEXAS 223 

and he and the leading counsel for the defense were knit in 
such bonds of attachment as bound David to Jonathan, and Damon 
to Pythias, yet he served, and I have stated the result. 

He is dead now, but his memory as an honest, brave man, abides 
still as the savor of a sweet incense in the community in which 
he was born, and reared, and died. 

I have known judges who would have fined him for language 
used on a later occasion. He was asked the question, "What 
do you say to the allegation of plaintiff that you aided the de- 
fendant in defrauding him?" "I say it is a d d lie," was the 

instantaneous response, and immediately he turned to me, and 
bowed, and said, "I beg your pardon, your honor." 

I did not fine or reprimand him, but simply said, "Proceed with 
your testimony." 

I knew his words sprang from the first impulse of an honest 
man, to refute a charge against his integrity, which no man could 
justly question, and he had no thought of showing disrespect to 
the court. 

JOHN R. KENNARD. 

One of my predecessors on the bench in the Twelfth District 
was Hon. John R. Kennard of Grimes County. The hand of the 
Divine never fashioned a braver or more honest man than John 
R. Kennard. 

He was a fighting Confederate for four years, and it was his 
war record which enabled him to defeat for District Judge, Hon. 
George Goldthwaite of Houston in 1866. 

He was no such lawyer, by any means, as was Judge Gold- 
thwaite, who had very few superiors as a lawyer, but Judge 
Kennard had a war record, better in the opinion of men of those 
days, than was that of his opponent. 

He went out of off'ice with nineteen other District Judges as 
"impediments of reconstruction" in 1867. 

He was elected District Judge in 1880, when the district took 
in Houston County. He succeeded Hon. William D. Wood of Leon 
County, who was a most capable judge, and who had been a most 
eff'icient State Senator, and who died in San Marcos in com- 
paratively recent years, leaving a handsome estate. 

John R. Kennard was sincerity and childish simplicity personi- 
fied. He was genuinely pious, and carried a Bible always in his 
inside coat pocket, but was not long-faced or Puritanical, yet 
lived up to his profession. 

In many cases, when sentencing a defendant, he preceded the 
final pronouncement with a kind expression of regret and sym- 
pathy, and of hope that the defendant would be well treated, 
and never failed to assure him that the court had tried to do 
him justice. The last assurance, he gave a negro defendant on one 
occasion, and the negro said, "I bleeve dat Jedge in mah heart, 



224 GOVERNORS WHO HAVE BEEN 

I sho do bleeves you makes a pass at jestis if you don't hit it." 

The County Judge of one of the counties in his district killed 
a man and, rather strange to say (having in mind the recollection 
of the sentiment and conditions prevailing in the county at that 
time), was convicted and given five years in the penitentiary. 
The old Judge began with his usual formula in passing sentence, 
but had not proceeded very far before he was interrupted by the 
defendant, who said, "See here. Judge, I came here to be sen- 
tenced to the penitentiary, not to hear any damn moral lecture." 
I discovered a year or two later that the defendant had a good 
deal of quiet humor and a surprising fund of sensible philosophy. 
I was passing through the penitentiary one day and found him 
attending to the grist mill. I had known him a long time, so I 
greeted him kindly, and said to him, "Judge, I hope you are 
getting along well." A faint, quizzical smile lighted his face for 
a moment, and he said, "To say the least, I've got a steady job." 

His manner of cutting off the kindly admonition of the Judge 
reminded me of an instance which occurred in an East Texas 
court. 

The Judge, whom I knew, was called upon to sentence a de- 
fendant to death. The judge was also a preacher, and he in- 
vested the situation with all possible solemnity. The defense put 
up by the convicted man was, as I recall, insanity, and notwith- 
standing the verdict, there was much doubt of his mental respon- 
sibility. The Judge, in most solemn tones, pronounced the dread 
sentence of the law, concluding with the words, "Hanged by the 
neck until you are dead — dead — dead!" He had scarcely uttered 
the last "dead" when the prisoner said, "And you go to hell — 
hell— belli" 

Judge Kennard was absolutely a matter of fact man, and unless 
there was some human element in a case which appealed to his 
easily-aroused but sincere emotions, he paid no attention to 
flights of oratory; and tropes, and similes, and metaphors, and 
quotations, were wasted on him. 

A worthy member of the bar, who yet practices in the Twelfth 
District, was very prone to quote Scripture in his speeches, 
whether made to the jury or to the court. He was trying a case 
before Judge Kennard without a jury, and made a very earnest 
closing appeal, the peroration of which was, "And now we ask 
your Honor to render unto Caesar the things that are Caesar's, 
and unto God the things that are God's." Before the counsel 
could even take his seat, the old Judge said: "That's all right, 
but what am I going to do with these two men here that are 
fighting over a sawmill?" The Scripture quotation was lost 
on him. 

I never liked the criminal practice and rarely appeared on that 
side of the docket, but on one occasion I applied to the old Judge 



AND OTHER PUBLIC MEN OF TEXAS 225 

for bail for a defendant, charged with murder, who had hunted 
the deceased for six months, and killed him on sight. His reasons 
for doing so were that the deceased had eloped with his daugh- 
ter, and betrayed here into a mock marriage; though he was 
already a married man. 

I argued that under such circumstances there could be no such 
a thing as a premeditated design, formed in a mind, capable of 
cool reflection. That no man could ever, after making such a 
discovery, have a calm mind, but the emotions raised on the first 
moment of discovery of the action of the deceased, would, like a 
falling cataract, gain increased impetus every moment, and the 
further the defendant traveled and the longer he searched, the 
more impossible would it be for him to contemplate anything 
coolly. 

When I had concluded my opening address to the court, the 
court recessed until morning, when the District Attorney was to 
be heard. When he came in next morning, he said, "May it please 
your Honor, I have thought over the matter of bail in this case, 
and influenced, I will say, to some extent by the speech of counsel 
for defendant, have concluded to withdraw my objection, and 
agree to bail." 

As he spoke I noticed that the old Judge's face was flushing, 
and that he was opening and closing his eyes rapidly, and the 
District Attorney had hardly uttered his last word, when the 
Judge said, "It would have made no difference whether you 
objected or not, I was going to give the defendant bail anyway," 
and the tears he made no effort to restrain, ran down his cheeks. 
His brave but tender old heart went out in sympathy to the 
stricken father, but when the case came to trial before the jury, 
he held the scales of the law poised on absolutely even beam. 

He said, "What amount of bail do you suggest?" I said, "It 
makes no difference to us whether it is one thousand, or a hundred 
thousand." He said, "I will make it ten thousand." 

There occurred then one of those scenes which proves that the 
hearts of all men who love honor, and cherish family pride, and 
are ready to defend both against every transgressor, are attuned 
to the same high note. 

The defendant was an utter stranger, whose home was in a 
distant county, but when I turned to the crowd outside the bar 
and called for sureties, men began to step forward with right 
hands in the air to enter into a recognizance for the stranger. 
They came so thick, and fast, that the generous offer of some had 
to be refused. The tears of the Judge and the ready sympathy 
of the bystanders, made a touchingly pathetic scene. 

There was, however, developed later, a deeper pathos as re- 
lated to the defendant. On the first trial there proved to be three 
jurors who were incapable of appreciating the lofty impulses, and 



226 GOVERNORS WHO HAVE BEEN 

motives, which prompted the defendant to rescue his daughter, 
and avenge the honor of his family, and they forced a dis- 
agreement of the jury, to the astonishment of the whole com- 
munity. 

After the jury had been discharged the defendant talked to me. 
He was about fifty years old, and was a stalwart, manly, honest, 
true man. He had the frankest, dark brown eyes T ever saw. He 
was universally respected, and could have given bond for a mil- 
lion dollars if it had been required. 

He said, "If that man had stolen my horses, I could have bought 
more horses. If he had burnt my barns, I could have built more 
barns. Had he burnt my home, I could have built another one. 
I own all the land lying around me between the two rivers near 
which I live, and I could have replaced any property that he 
might have destroyed; but he stole my only daughter, and her 
mother is twenty years older than she was the night my daughter 
left our home, and her health is broken down by sorrow, and for 
the first time a blot has been put upon my family name, though 
we have lived here from pioneer days, yet three men in this 
county seem to think I ought to go to prison for doing what I 
did. It seems to me to be mighty hard." When he finished tears 
had welled up into his big brown eyes, and I suspect tears dimmed 
my eyes also. 

He passed over to join the silent majority some years ago, and I 
can repeat here with propriety what he told me. He said: "When 
I found that man I said (calling him by his full name), 'you 
have betrayed my hospitality and my friendship, you have broken 
the heart of my wife, you have stolen and disgraced my child 

and brought dishonor on my family name, and by G d I am 

going to kill you.' " He stopped there — the rest I knew, 

I heard after the last trial had ended, that a big, stalwart farmer, 
with whom I had gone to school in a log cabin, got upon a chair 
in the jury room as soon as the jury had entered it, and said, 
"Every man who wants to clear the defendant say 'Aye,' " and 
there was a unanimous chorus of ayes, and the broken-hearted 
father was freed, as he ought to have been. 

I wrote in that case the only speech I ever wrote to be deliv- 
ered before a jury, before or since. I, of course, did not read it 
to the jury and I argued in perfect good faith, to which faith I 
still hold, that upon principle, and by analogy the defendant was 
justified under the statutes of Texas. That he was, is as sus- 
ceptible of demonstration as is a problem in primary mathe- 
matics. 

I recall an incident which occurred in Judge Kennard's court, 
in which humor and pathos were strangely blended. The District 
Attorney moved to dismiss a criminal case on the ground of the 
death of the defendant, a negro. The old Judge said, "How do 



AND OTHER PUBLIC MEN OF TEXAS 227 

you know that the defendant is dead?" The District Attorney 
said that he did not know it personally, but was advised that it 
was so. Whereupon, the old Judge said, "You had better be 
certain, because they asked me down in Grimes County to set 
aside the forfeiture on the bond of a negro called Simon Fairfax 
because they said he was dead, and they produced a lot of what 
they said was a hair cut from his head, but in a few days the 
sheriff had Simon in jail, and the defendant in this case may not 
be dead." There was a prominent lawyer of the district walking 
to and fro in front of the Judge's stand cogitating on a case soon 
to be called for trial. He heard the statement of the court and 
stopped and said to the Judge, "That defendant won't come back, 
I wish to God he could," and then resumed his walk to and fro. 

The pathos of the incident arose from the fact that the defend- 
ant had invaded the premises of the lawyer, and had frightened 
his family, and perhaps threatened them with bodily injury, and 
the lawyer had killed him. He, therefore, knew there was no 
danger in dismissing the case. 

I chanced to be standing by the Judge's stand in the court house 
at Madisonville one day, when a tall, strapping man, evidently 
considerably under the influence of liquor, approached the 
Judge's stand. 

The Judge was trying a divorce case, a character of case which 
he had a strange and amusing penchant for trying. The man 
said, "I want to see you." The Judge said, "Just take a seat, I 
will be through in a few minutes." It took longer to get through 
with the case than the Judge had expected, and longer than the 
visitor was willing to wait, and he again approached the stand 
and said, "I want to see you. Judge." The Judge said, "Well, just 
be patient, I can't stop this case, I will be glad to see you as soon 
as it is over," and he again fixed his mind on the trial. 

The law of physics, that two physical objects, cannot occupy 
the same place at the same time applied to his mind. He could 
not think of two things at once. He had as absolutely forgotten 
that the man had ever spoken to him as if he had never seen him, 
and when the case was ended he started to leave the court house. 
The man who had waited for him had just enough liquor in him 
to be mean, and walked up to the Judge and said, "You insulted 
me a while ago." The Judge said, "Are you the man that spoke 
to me, if so, what can I do for you?" The fellow said, "I have 
come to call you to account." He did not know the man he was 
speaking to. He would have been no surer of an explosion if 
he had dropped a coal of fire into a powder magazine. In an 
instant the old Judge said, "All right, if you want to call me to 
account, I am here. No man ever called John R. Kennard to 
account that didn't get an answer. I'll maul you till you can't see, 
and do it in a minute." The old man was about six feet three 



228 GOVERNORS WHO HAVE BEEN 

in height, and weighed about two hundred and forty pounds, 
and was afraid of nothing in human shape. The very sensitive 
would-be fighter saw he had stirred up the wrong man and 
like the witches in the play of "Macbeth," seemed to have van- 
ished into thin air. The old Judge was a candidate for re- 
election in 1884 but died seven days before election day. He was 
a true man to the last, and told his friends to get out another 
Democrat as a candidate and elect him; and they did. 

I believe he has realized the truth of the' assurance of that 
Master in whom he trusted with a childlike faith, that "the pure 
in heart shall see God." 

WILLIAM H. BURGESS. 

Shortly after the case referred to in the previous chapter had 
been tried the last time, I chanced to meet in the Senate Chamber 
of the Temporary Capitol that bright, witty, eloquent, chivalrous 
man, William H. Burgess, of Seguin, who was for a number of 
years a partner of Hon. John Ireland. 

He was the author of the famous epigram, "You can no more 
run the Democratic Party without whisky, than you can run the 
Baptist church without water." 

"Biir'Burgess, as his legion of friends called him, was a gallant 
soldier in Hood's Texas Brigade. He died a number of years ago, 
but his three sons, William H. Burgess, Richard F. Burgess and 
Russell Burgess, have proved themselves worthy scions of their 
knightly ancestry; a lineage of gentlemen and ladies of 
the "old regime" of the South, which furnished the world the 
highest types of Christian civilization ever known in any age 
or any land. It was not an aristocracy of money, but of blood, 
and worth, and virtue, and the sons of "Bill" Burgess are gentle- 
men by birth and breeding. I chanced to speak to Major Burgess 
about the case which had so much interested me. He said, "That 
was a remarkably interesting case, but it hardly equals the one 
which came before the grand jury in my district when I was 
District Attorney." My recollection is that he was elected District 
Attorney in 1876. I was curious to know of any case that could 
possibly be more tragic or more pathetic than was the one I had 
referred to, and he told me the following story: I do not, of 
course, undertake fo repeat his language verbatim, but shall give 
it substantially, and in detail as he gave it to me. 

After the grand jury had been organized, the foreman, who 
was an old man with gray beard, asked if there was any witness, 
or witnesses, conveniently at hand that might be called in while 
the bailiff was summoning others. 

Some one said that the proprietor of a country store in which 
a man had been killed a few days before by a stranger, was in 
town. He was brought in and sworn, and was asked to tell all 



AND OTHER PUBLIC MEN OF TEXAS 229 

he knew about the homicide. He said, "I saw the man killed, but 
do not know the name of the man who killed him, as he was a 
stranger, and only stayed long enough 'to give his reasons for 
doing the shooting. 

"He rode up to the door of my store and threw his bridle reins 
on the gallery and walked in. Several of us were sitting in some- 
thing like a semi-circle around the stove, on chairs, and nail kegs, 
and boxes. The man at the right hand end of the row had not 
been in the community very long, and none of us knew much 
about him. The stranger was well dressed and looked like a nice 
man. He looked at me and then looked down the line or semi- 
circle, till he got to the last man, and after looking at him closely 
for some time, quick as a flash, drew a six-shooter and shot the 
man twice before his body struck the floor, and when it reached 
the floor the man was dead. I and the rest of the crowd jumped 
up, but the stranger said, 'keep your seats, gentlemen, while I 
explain what you no doubt consider my remarkable action.' We 
sat down^but he stood with his right foot on a chair and as well as 
I can remember now, he told us what I am going to tell you. He 
said, 'When the war broke out in 1861 I was eighteen years old. 
I joined the Southern army in Alabama, where our family lived 
and where I was born. It consisted of my father, my mother, 
and a sister about 16 years old, and myself. 

" 'My sister was as beautiful as an angel, and I loved her as 
I did nothing else on earth, even more than I loved my mother. 
My family were comfortably well-off, as they owned a large plan- 
tation and negroes, so I did not take a furlough during the whole 
war. Some of my comrades were poor men, and I let them take 
my chance for a furlough. I rose to be a Captain before the 
war ended. When I got home my mother met me at the gate, 
sobbing violently. I knew her emotion was too great to be caused 
alone by joy at my return, so I thought of my sister the first 
thing, and asked where she was. My mother said she was in 
the house, but I must not see her. I unlocked my mother's arms 
from my neck, and rushed into the house, and went to the bedside 
of my sister. From her head to her feet, — she was a mass of sores. 
She was dying of a loathsome disease. I rushed back to my 
mother for an explanation. She said that during the war she 
at times went into the city and brought our sick soldiers to re- 
cuperate on the farm. One was rather a good-looking in- 
telligent man and he stayed about six weeks. He professed love 
for my sister, and she reciprocated his seeming affection, and 
when he asked for the privilege of marrying her my mother 
consented, as my father had died, and I might be killed in battle. 
They were married and in a few days the man left to return to 
his command. Shortly afterwards it was discovered that he was 
a married man with a family. I went to my sister's bedside, and 



230 GOVERNORS WHO HAVE BEEN 

knelt, and lifted up my right hand and swore to God, by the love 
I bore my dead father, and the love I bore my mother, and the 
idolatrous love I had for my sister, that the man who had de- 
ceived and betrayed her should not live upon the earth. My 
sister died that day, my mother soon followed her, and I sold the 
plantation, and ^otton, and all the stock, and with a picture of 
the man which had been left at my home, in my pocket, began 
my search for him. In some way he found out I was on his 
track, and he fled. I followed him to the Mississippi and across 
it. I followed him over the Rocky Mountains and into the wilder- 
ness nearly to the Pacific Ocean. I followed him over the desert 
by day and by night. I lost his trail some time for weeks, but 
I never stopped my search for him. I never saw him till today, 
anjd there he lies.' When he got through the man mounted his 
horse and bowed and rode off, and that is all I know." 

Mr. Burgess said when the witness had finished testifying' tears 
were pouring down over the foreman's gray beard, and he rose 
and brought his brawny fist down on the table and said, "No bill, 
by G d," and the other jurors said "no bill," and no indict- 
ment was returned. The avenger of his sister found no accuser. 
Of course, the old foreman violated the decalogue when he al- 
lowed his feeling to find expression by taking the Lord's name 
in vain, but I am inclined to believe his oath was treated as 
Sterne said "Uncle Toby's" oath was. "The accusing angel which 
flew up to heaven's chancery with it, blushed at it as he gave it 
in, and the recording angel dropped a tear upon the word that 
blotted it out forever." 

JONES RIVERS. 

The court rooms in the tier of counties lying along the Colorado 
and Brazos rivers, from Columbus to Georgetown, were the 
theatres in which were displayed the wit, and jests, and marvel- 
ous eloquence of Jones Rivers for many years. 

Some gentleman, just who, I do not now recall, told me a num- 
ber of years ago, that he had heard Jones Rivers speak, and 
that he was capable of eloquence equal to that of Byron, as dis- 
played in his finest verse. 

Like many lawyers of that day and time, he lingered too long 
over the intoxicating cup, and like mosr geniuses drank Jiot 
wisely but too much. I never saw him in my life, but I have 
been told that he died in the town of Georgetown, Williamson 
County, in 1859. 

The circumstances surrounding his death, and the way in which 
he met the call of the relentless messenger, is, I believe, well 
authenticated. I would not be sworn to the statement, but I 
have a very distinct recollection of hearing the facts from the 
late Howard Finley, who was a lawyer at Galveston for many 



AND OTHER PUBLIC MEN OF TEXAS 231 

years, and was a brilliant man, but like Jones Rivers, was his own 
worst enemy. My recollection is that he told me he was present 
^hen Jones Rivers died. In any event I do not believe there is 
iny doubt about the truth of the story substantially as I shall 
relate it. 

He was traveling the circuit, and was attending court at 
Georgetown. He was taken sick and a physician was summoned, 
who came promptly and examined the sick man closely and said, 
"Mr. Rivers, if you have any business, or other arrangements to 
make, you had best do so quickly, for you have not long to Jive." 
The patient received the announcement without a tremor and 
turning to some one in the room — and I think Howard Fiiiley 
said he was the man — said, "Please raise the curtain over that 
window." The curtain of cheap thin calico was raised. The 
window frame was small, and the window lights only about eight 
or ten inches in size. The sash rattled in the frame as the inter- 
mittent blasts of a norther struck the house. 

Georgetown, now a beautiful, up-to-date little city, in the center 
of one of the finest agriculture territories in the world, was then 
a mere hamlet on a hill, with almost limitless prairies stretching 
away on every side. There v^as a thin sheet of sleet on the 
ground, and the brown and sere grass could be seen through it. 
Altogether, it was a desolate and depressing scene. 

The dying man said, "Well, I have not lived as I should have 
done, but God has been good to me, nevertheless., and His mercy 
has followed me to the very grave and gate of death, for He has 
called me to die in Georgetown, and I know of no pla^^e on earth 
that I could leave with less regret." He wh5 dead in an hour. 
There may be those who are skeptical about any man meeting 
death witli a jest, but there are repeated instances where men 
have done so. 

A good many years ago there was a very witty, brilliant man 
in the city of Richmond, Va., whose name was August. He was 
very sick on the 31st day of July and one friend standing by 
asked another what day of the month it was. The reply was 
that it was the 31st day of July, and the man who asked the ques- 
tion said, "Well, tomorrow will be the first of August." The sick 
man then spoke up and said, "Yes, and tomorrow will be the last 
of August," which proved to be true. 

I have been told that the proprietor of the hotel in which Jones 
Rivers died was named Ake, and it used to be said that the 
boys of the town worked the old man up into a fury, by inter- 
polating into the dying statement of Jones Rivers, after the word 
Georgetown, the words, "and in Ake's hotel." 

The late William Pitt Ballinger of Galveston practiced law in 
Texas from 1847 till 1888. He married a daughter of a San Jacinto 
soldier, and knew all the prominent lawyers in early days in 



232 GOVERNORS WHO HAVE BEEN 

Texas. He once told the following story concerning the defense 
by Jones Rivers of Colonel C. C. Herbert, who was commonly 
known as "Claib" Herbert. C. C. Herbert was elected to the 
Confederate Congress during the Civil War. I have a faint 
recollection of having seen him once, and recall him as a brawny, 
broad-shouldered blonde, who looked as if he might have had 
the blood of Norseman ancestry in his veins. He was a planter 
who kept fine saddle horses, and a pack of deer hounds, and was 
big-hearted, generous and hospitable. 

One day while he and a party of friends were enjoying at his 
table, a typical Southern dinner, such as only a "nigger" bare- 
footed, and with a bandanna handkerchief on her head could 
cook, and the equal of which no "chef" on earth ever did cook, 
a little boy about ten years old came running into the house, 
sobbing bitterly. 

Colonel Herbert met him and asked what was the matter. Be- 
tween sobs the little fellow said, that the man he lived with (and 
who, in some way, had legal control of him) had beaten him. 
Colonel Herbert examined his body and it was evident that the 
child had been cruelly whipped. Colonel Herbert directed a 
servant to wash the hands and face of the little boy, and fix him 
a seat at the table. About that time some one hallooed at the gate, 
and Colonel Herbert went out in response to the call. He saw 
that the man at the gate was the individual with whom the little 
boy lived, and whose name, as I now recall, was Howard. 

He was a typical Puritan, and talked with the high pitch and 
nasal twang, which unerringly identifies the descendants of that 
crowd which, owing to the greatest marine disaster of modern 
times — the safe landing of the Mayflower on Plymouth Rock — 
landed on the shores of America three or four centuries ago. 
When Colonel Herbert reached the gate in front of which Howard 
was sitting on his horse, Howard said: "Colonel Herbert, have 
you seen anything of that little boy who lives with me? It be- 
came necessary to chastise him slightly this morning and he has 
disappeared." 

Colonel Herbert made no reply, but caught Howard by the 
collar, dragged him from his horse, and with a club or some other 
such weapon, gave him a fearful beating, after which he flung 
him under his horse, saying as he did so: "That'll teach you not 
to beat another orphan boy." 

As soon as Howard was able to travel, he went to town, and 
the District Court being in session, went before the grand jury 
and an indictment for aggravated assault and battery was returned 
against Colonel Herbert. Colonel Edwin Waller, in whose honor 
Waller County was named, was District Attorney, and Hon. 
Fielding Jones was on the bench. The case went to trial immedi- 
ately, and Howard told his tale as a witness, and Jones Rivers, 



AND OTHER PUBLIC MEN OF TEXAS 233 

who appeared for the defendant, asked him enough questions to 
show that he had beaten the boy. 

After Howard testified the State rested. The judge asked Jones 
Rivers if he had any witnesses. He said, "Only one, sir," and 
walked back to the rear of the court room and when he returned 
was leading by the hand the little boy. The boy was small for 
his age, and was ill clad, and bore all the indications of orphan- 
hood in poverty. He sat the boy down in full view of the jury, 
saying, "that is our only witness, and we will not have him 
sworn." 

Colonel Waller said : "Gentlemen of the Jury, the defendant has 
not denied the testimony of the State's witness, and there is noth- 
ing for you to do but return a verdict of guilty, and assess such 
punishment as you think proper, under the instructions of the 
court." 

Jones Rivers knew all the jurors, and knew their family history; 
and had known the father of the boy. He knew that the most 
intelligent man on the jury, who had been acting as foreman in 
other cases, had been a fellow soldier of the boy's father at San 
Jacinto. He knew, too, that he had married, late in life, and had 
twin boys about the age of the orphan boy, love of whom was 
the absorbing passion of his life. 

Jones Rivers said: "Gentlemen of the Jury, I have two clients 
today, the one is 'Claib' Herbert, who is my friend, and your 
friend, and the friend of every man who needs a friend, and who 
has proved to be the orphan's friend. The other client is yonder, 
poor, frail, orphan boy, who sits before you, and whom Howard 
admits he beat. 

"For aught I know, some of you stood side by side in the 
fighting lines with this poor child's father at San Jacinto, and 
with him help win a victory which made Texas free. 

"For aught I know, some of you may have boys like this with 
which God has blessed you in your old age, and which you love 
as this boy's father loved him. Some of you are growing old. 
Your hair and beard are silvering with the frost of many winters. 
(He was describing the foreman of the jury exactly, and appeared 
to be addressing himself exclusively to him.) 

"Soon you must pass over to the other side and join your com- 
rades who have gone before, and it may be that when you have 
gone, your little ones may be committed to the keeping of some 
Howard, as was this poor, striped and beaten child. 

"It may be that the little eyes that now brighten at your coming 
will then be red with weeping (as he spoke he drew so near to 
the foreman that he could have touched him with his hand). 

"It may be that the little form which you draw close to your 
throbbing heart in the very rapture of a father's love, may be 
bruised and wounded by some Howard, as was and is the frail 



234 GOVERNORS WHO HAVE BEEN 



form of that poor child that sits there, in all the helplessness of 
orphanhood before you. 

"It may be that the little arms that reach up and encircle your 
neck in expression of the love of a y^oung heart, may be raised to 
shield his little body against the brutal blows of some Howard; 
and then, perchance, the God of the orphan, may in His infinite 
goodness raise up some 'Claib' Herbert to protect and avenge your 
darling, and if he did, would you have that protector and avenger 
pimished?" 

The climax was reached, the old foreman could stand no more, 
and he rose and lifting both hands above his head, while the tears 
rolled down his cheeks, and fell on his gray beard, cried out, 
"No — No — ^No — N-o N-o," and dropping his head on the railing 
before him, with his face in his hands, sobbed aloud. 

Jones Rivers, of course, sat down. Colonel Waller promptly 
rose and began the closing speech for the State, whereupon the 
old foreman stood erect and said, "Set down, Edwin Waller, set 
down, you are a good man and a good officer, but set down." 
Then turning to the judge he said, "Your Honor, we find the de- 
fendant not guilty." "So say you all, gentlemen?" said the court. 
The answer was unanimously in the affirmative, and the court 
said: "Let the defendant be discharged." 

The witchery of the eloquence of one who possessed the "divine 
afflatus" which is as distinctly the possession of the orator as it 
is of the poet, and which is a gift of God, triumphed over the 
cold, abstract letter of the law, and won a victory for righteous- 
ness which had its support in the law of the God of right and 
justice. 

Judge Ballinger, after telling me the story just related, said 
that "Claib" Herbert went on one election day to the voting place 
which was on, or near, his plantation. There being no law 
against saloons being open on election day, there was one open 
nearby. He said to the proprietor, "I want you to close up. I 
want no liquor sold here. If you do there will be trouble among 
the voters." The saloonman said that election day was the best 
day for his business, and he could not afford to close, and would 
not do so. In the twinkling of an eye "Claib" Herbert drew back 
and struck the saloonman full in the face, and he would have 
fallen but for the shelf behind him, and he rallied and put up 
a fight. 

The next morning Colonel Herbert came into the saloon and 
the man squared himself for another fight; but Colonel Herbert 
raised his hand in protest and said: "No, I didn't come to fight. 
I came to ask you some questions which I want you to answer. 
Did I hit you first last night?" "Yes, Colonel, you struck me be- 
fore I knew it." "Did I hit you a fair blow?" "Yes, full in the 
face." "Did I knock you down?" "No, sir." "Did I draw 



AND OTHER PUBLIC MEN OF TEXAS 235 

blood?" "No, sir." "Then 'Claib' Herbert's fighting days are over. 
When he gets the first blow, and a fair blow and neither knocks 
down or draws blood, he fights no more," Strange to say, he wa^ 
killed accidentally just after the Civil War while trying to stop a 
fight between two men. 

THE COURT AND THE MOB. 

A seat on the District Bench in East Texas, is not always cush- 
ioned with down, or garlanded with roses. 

That it is not, I can personally testify, for while there are no 
better people in the world than can be found among the constitu- 
ency, which I served as judge for nearly seven years in the 
Twelfth District; yet, at times they became aroused and broke 
out in the form of mobs. 

They did so on three occasions while I was on the bench and 
if any man has never faced a mob, I can inform him that the 
situation is not one to be sought. I have faced three Galveston 
storms, and I would rather face three more, than face one mob. 
I saw only two of the three which gathered in my district, but 
that number was an abundance. I do not mean to be understood 
as even appearing to boast, that on either occasion, I displayed 
any heroism, because I did not. 

I knew that no man in either mob was going to offer me any 
violence. Many of the members of the first mob had known me all 
my life, and some of them and I had gone to country school 
together, and most of them were my friends. Those who formed 
themselves into a mob did not in either instance seek the cover 
of darkness, but operated in broad daylight, and nine out of ten 
were, under normal conditions, law-abiding citizens. 

Such citizens do not form themselves into a mob unless under 
great provocation, and while they proceeded to effect the end 
they had in view, by unlawful methods, they were not at heart, 
criminals; yet, I am earnestly opposed to mob rule, and it should 
be relentlessly crushed out. When their passions have subsided 
and they have become normal, those who ordinarily constitute 
the mob, are fair minded. 

Although the first one that I was forced to meet was formed in 
election year, and I was a candidate for re-election. I was, of 
course, in duty bound, to tell them, as they, every man armed, 
gathered in semi-circle around me, that their action was unlawful 
(they had killed two men the day before), and that the court 
was open to punish criminals, and I was, in duty bound to 
charge the grand jury that the acts of the mob was murder — 
which I did — yet, at the election, I received a clear majority over 
two opponents. I had to take the course I did or prove recreant 
to my trust, and unworthy to be a judge. There was no bravado 



236 GOVERNORS WHO HAVE BEEN 

in my action, for, as I have said before, I was in no danger "of 
physical violence, and I simply did my duty. 

Many judges in East Texas and elsewhere have been compelled 
to deal with mobs, and in all likelihood, others will have to do so 
in the future, and I believe that what I learned from my experi- 
ence with the second of the two mobs, may be worth space that 
it will take to record it; even if it be not exactly germane to the 
general purport of what I am writing. 

I discovered that mobs are not actuated by contempt for the 
law, or by a spirit of defiance of the courts, nor by any sheer 
desire for vengeance, nor are they actuated by any brutal or 
blood-thirsty motive. I am sure no such motive prompted the 
mob to which I refer, and I believe that what was true of that 
one, is true of nearly every mob. I drew this conclusion from 
the following facts: I placed myself between the mob and the 
jail, in which the prisoner was supposed to be, and in which I 
believed him to be, and began to speak substantially as I had 
on the previous occasion about four years before. 

One of the mob, whom I had never seen before, and for that 
reason I do not believe he lived in my district, interrupted me. 
The leader of the mob, whom I knew well, and who was a worthy 
citizen, ordered the man peremptorily away, and said to him, "Let 
the Judge talk," and while I talked to those hundred or more 
men, mounted and armed, bent on taking human life, — they bared 
their heads under the blazing August sun, and treated me with as 
much respect as if I had been on the bench in the court house. 

The reply of the leader to what I said, revealed to me what I 
had never thought of before, and put the "mob," as the term is 
ordinarily understood, in a new light. He said: "Judge, we do 
not mean any disrespect to you, or to the law, or to the court. 
You are our judge, and we respect you as such, but this negro 
has gone into the house of one of our neighbors, and beaten a lady 
into insensibility, and ravished her, and he does not deserve a 
fair trial. Then, we do not want the lady to have to go into the 
court house and tell the facts before a crowd of people." 

In the last sentence of that leader's talk he stated the gist and 
core of the reason for mob violence, when a woman is the 
victim of the crime. It is that she is compelled to go into court 
and by the unescapable compulsion of the rules of evidence, 
reveal the humiligting details and revolting physical facts con- 
cerning her own defilement. 

Such an ordeal, in the eye of a pure and refined woman, is in 
but a slight degree, if any, preferable to death. 

I have said the mob was not actuated by sheer brutality, and 
that statement was proven by the fact that while the victim of 
the negro's lust desired that he be burnt, the mob declined to yield 
to her request, and he was hanged, and not a shot was fired into 



AND OTHER PUBLIC MEN OF TEXAS 237 

his body, nor was it maimed in any way. I trust the idea that 
I have intended to convey will excuse this digression, for I be- 
lieve what I learned that day was of sufficient importance to be 
set down here, because the people of the South, have been accused 
by negrophiles who live elsewhere of indulging in mob violence 
in a spirit of sheer lawlessness. As I have said on a previous 
page, it takes no high degree of courage to face a mob when you 
feel assured that you are not going to be either killed or wounded; 
but when the mob spirit is in the air, and has extended its baleful 
influence into the jury box, and that influence is reflected by a 
death penalty assessed, which verdict is not authorized by the 
testimony, it takes a judge with a true conception of judicial 
duty, and with the courage to translate that conception into 
action, to meet such conditions as it should be met. The radic- 
ally erroneous idea, which to a large extent, has taken hold on 
the popular mind that no one man has the right to say that shall 
not be done, which twelve men have said should be done, has 
been the fecund mother of many mobs. Those who think that 
way, have the conception that a judge is a mere automaton whose 
duty it is to register the conclusions of a jury, though it is a 
reflection of prejudice, and of inflamed and vicious public 
sentiment. 

Most happily for Texas, she has had, and no doubt has yet, judges 
who did not and do not agree with that conception of the 
judicial function, and who will not play the role of judicial 
automaton. 

There was furnished in an East Texas county some thirty 
years ago most gratifying proof that one judge knew the law, and 
knew his duty, and dared do it. I knew him well, and exchanged 
districts with him during my term of service as judge. 

A negro was indicted, and put on trial for murder. He was 
convicted and the death penalty assessed against him. I do not 
know whether the judge waited for a motion for a new trial to be 
presented or not, but in any event, he coolly wiped the verdict out 
and set the judgment aside and the people murmured loudly, so 
loudly, as I have been advised, that their murmuring presaged or 
foreshadowed a mob. At the next term of the court a second trial 
was had, with the same result, and again the judge annulled the 
verdict by a new trial. The people were even more enraged. 
The judge, a small delicate, quiet, unassuming man, paid no 
more attention to the murmuring of the angry populace than he 
did to the sighing of the stately pines which towered above the 
court house. Before the next term of the court the officers of the 
law found a clue which, being followed, unraveled the mystery 
of the murder, and revealed that the twice convicted negro was 
as innocent as a babe unborn. 

The life of an obscure, penniless negro was saved by the fidelity 



238 GOVERNORS WHO HAVE BEEN 

to duty and the courage of the judge, in the face of the verdict 
of twenty-four men that he deserved to die. 

Heroism is revealed in many forms; but there are few higher 
types of heroism than that displayed by the judge who, with no 
music and no flags and none of the "pomp and circumstance of 
glorious war" to thrill and stir, executes justice and maintains 
truth in the face of popular clamor. 

When he, "in the unvexed silence of a student's cell," strives 
to determine what is the law, and find the light, and in the fear 
of God, phrases and frames a judgment which he knows will call 
down upon him popular condemnation, and perhaps cost him 
his office, yet declares the law as he believes it to be, he is a 
hero in the sight of God. 

There is, however, a type of heroism higher than that. The 
judge, who, when the mob has registered its wishes through the 
medium of the jury box and pronounced its mandate of death 
upon evidence which the law does not recognize, coolly annuls 
that mandate, and disregards the verdict begotten of prejudice 
and suspicion, and thereby declares that the law and not the 
mob, shall rule; rises to heights of heroism well nigh sub- 
lime. That was what the East Texas judge wrote twice on the 
record of his court with a stroke of his pen. That judge was 
Edwin Hobby, father of the man who was Governor of Texas 
when this sketch was being written. 

A NOTABLE LEGAL BATTLE. 

Every criminal case upon the result of which depends a man's 
life or liberty is full of human interest, and where able and 
skillful lawyers are engaged on both sides, and fight the case on 
its merits, the court room becomes a stage, and the legal drama 
makes appeal to the whole gamut of human emotions. 

I sat a portion of one term at Galveston by exchange with 
Judge Gustave Cook and tried a homicide case. The case was 
one which aroused great public interest. Public sentiment was 
so strongly aroused against the defendant, that Judge Cook was 
severely criticised for allowing him bail. 

The slayer and the slain w^re both professional gamblers, but 
the slain man had been well born, and well educated, but had 
gone off at a tangent, and become a sporting man — yet he was 
very popular, as he had the manners of a gentleman. 

The defendant, on the other hand, was in every particular 
exactly the opposite. 

The counsel for the State were F. M. Spencer, who had just 
»"etired from the position of District Attorney after fourteen years 
of continuous service, and who seventeen years later was Judge 
of the District Court of Galveston County, and who was both 
experienced and able as a prosecutor; W. C. Oliver, the incoming 



AND OTHER PUBLIC MEN OF TEXAS 239 

District Attorney, a most capable lawyer, and Jas. B. Stubbs, 
then and now, one of the ablest lawyers at the bar of Texas. 

Marcus C. McLemore, John Lovejoy and Col. Geo. P. Finlay 
appeared for the defense. A nol pros having been entered as to 
Colonel Finlay's client, a well known gambler of San Antonio, 
Colonel Finlay did not appear actively on the trial. 

Marcus C. McLemore was a graduate of an American university, 
and of the University of Heidelberg, and of the Paris School of 
Civil Law and was equally at home in the field of the civil and 
criminal law, and was, a most skillful trial lawyer in either field. 
John Lovejoy gave promise then of developing into what he 
afterwards became, a power before a jury in any kind of a case. 
It took from nine in the morning till midnight to get a jury. I 
recall even now, how the defense strove to avoid taking the last 
man called. He was a singing evangelist and revivalist, and all 
gamblers were the children of Satan in his sight, but he had to 
be taken. 

There was not a dilatory motion made, nor any technicality 
invoked by either side. So to speak, both sides stepped out in 
the open and fought without shields. In the vernacular of the 
prize ring, it was a "bare-knuckle" fight. 

The skill manifested in examination of witnesses, and the 
rapidity with which they were examined I had never seen 
equalled before, and have never seen since. 

There was no re-direct, or re-cross, or re-recross and re-redirect 
examination, which is always the unfailing indication, either of 
improper preparation, or of ignorance of the rules of evidence, 
or both. 

What in the hands of less skillful lawyers would have taken 
an hour, was frequently disposed of in ten minutes. Many a case 
in which there were as many witnesses examined has taken a 
week, while unless my memory betrays me, thirty witnesses were 
examined, and the arguments presented, and the case put in the 
hands of the jury between 9:00 a. m. and 12:00 p. m., or midnight. 
The whole trial illustrated the difference between lawyers and 
"shysters," between men fighting on principle, and on a high 
plane and men willing to get results by any kind of method, how- 
ever devious, as is the case in many murder trials, and between 
experts and bunglers. 

The arguments were terse, eloquent, fair, strong. John Lovejoy 
was the least eloquent man of the five, but as I told him after 
the case was over, he made the speech best suited to the case. 
He leaned, indeed almost sat, on the edge of a table, and in a voice 
never raised beyond a conversational pitch, and without even a 
single attempt at eloquence, and with no eff"ort to appeal to the 
emotions, but talking ^s if he were transacting a matter of busi- 
ness, put the case of his unpopular client before the jury with a 



240 GOVERNORS WHO HAVE BEEN 

persuasive and convincing power I had never seen surpassed 
before, nor have I seen it since. 

He was my friend foi" many years, and I am glad to lay this 
deserved tribute on the altar of his memory. 

It was a battle royal between five legal paladins, every one 
of whom wielded a shining lance. 

The evidence made it necessary to charge the law on both de- 
grees of murder, and on manslaughter, and on self-defense, and 
upon when the right to pursue an adversary began, and when 
it ended. 

I know of no judge who could have covered the case correctly 
in a shorter charge except Gustave Cook. I have seen a charge 
written by him with a pen on less than a page and a half of legal 
cap, which supported on appeal the death penalty. 

It was the second charge I had ever written in a murder case, 
and it was very gratifying to me, a beginner on the bench, that 
not a single special charge was asked, nor a single exception taken 
to the charge given. 

About nine o'clock next morning the jury returned a verdict 
of acquittal, which in some quarters was severely criticised, and 
for that reason, as a matter of justice to one of the finest juries I 
ever saw in a jury box, I took occasion to say the verdict was 
proper, as it was. 

Five of the six able lawyers and knightly gentlemen who ap- 
peared in the case have "passed over," and only Jas. B. Stubbs 
remains. He and I are the only professional or official actors in 
a stirring judicial drama, who are left. 

We, as that great wit. Dr. Ferris of Richmond, Texas, used to 
say, still linger "as monuments of God's mercy and the devil's 
forgetfulness." 

AN HONEST TALESMAN. 

On the trial of the first murder case in which I ever sat, eleven 
jurors had been empanelled, and I sent out for talesman. 

The first man of six called was a farmer, who tilled his own 
farm, but well educated, and a man of a very high order of 
intelligence. 

When asked as to his sympathy or bias, he said: "No, but I am 
conscious of a very profound sympathy for the parents of the 
defendant, who are my neighbors." 

He answered all disqualifying questions in the negative, but 
added : "Mr. District Attorney, you have heard what I have said." 

Both sides accepted him. In eighteen houfs he brought in a 
verdict signed by him as foreman, giving the defendant five years 
in the penitentiary, and no motion for a new trial was even filed. 

Such a man as that man was, is a moral asset of incalculable 
value to any community. 



AND OTHER PUBLIC MEN OF TEXAS 241 

COURT SCENES IN GRIMES COUNTY. 

I recall an amusing incident which occurred in the course of a 
trial of an important criminal case before me, while I was on the 
bench in the Twelfth District. 

The District Attorney, — a very fair, but very able representative 
of the pleas of the State, conceived the idea that a colored witness 
was testifying falsely, and for that reason put him through an 
unusually rigid and searching cross-examination. 

He fired at the witness question after question in quick succes- 
sion, giving him no time to plan or prepare an answer, but 
pressing and plying him remorselessly, but at all times in the 
bounds of legitimate cross-examination. At last the witness was 
fairly cornered, and threw up his hands sand said: "Dar now, 
Mr. State's 'torney, you done cross talk me 'twell you cotch me 
lyin'." The crowd in the court room which had been listening 
with absorbed attention, broke into uproarious laughter, which I 
only perfunctorily tried to stop. I felt that the crowd was en- 
titled to relief from the tenseness of the situation. 

In all my experience of eighteen years on the bench that wit- 
ness was the only one I ever heard admit he was lying. 

In the same county and court room an incident occurred which 
was pre-arranged, — a fact in which I, of course, had not even an 
intimation, and which I did not discover until after the case 
was over. 

Major H. H. Boone, who had been Attorney General of Texas, 
carried the plan into execution, but it was the conception of his 
partner, A. F. Brigance, a very shrewd and resourceful, but hon- 
orable lawyer. I would have been justified in fining both men, 
but the motives which prompted their action was so worthy and 
generous that I was utterly disarmed. 

A country boy, more or less wild, and sometimes dissipated, 
had killed a negro under circumstances which made a successful 
defense very difficult, if not impossible. 

He was not a common offender, nor at heart really a bad citi- 
zen, and he had an aged grandmother who was deeply devoted 
to him, and Vs^ho was a noble old lady whose friend Major Boone 
had been for many years, and whom he highly esteemed, and 
whose anxiety for the fate of her grandson appealed to his 
sympathies. 

The same District Attorney referred to as being a party to the 
incident previously related, was representing the State. He put 
in his testimony quickly but in a very impressive way, and 
rested. 

Major Boone said: "Take the stand, Mr. Knott." Mr. Knott, 
commonly called "Tom," came around, and was sworn. He was a 
comical looking individual, though not lacking in intelligence. 



242 GOVERNORS WHO HAVE BEEN 

His head was round, and he had on his face a good natured grin, 
which made him rather attractive as well as amusing, and as he 
knew all the jury, his grin expanded when he looked at them. 

Major Boone said: "Mr. Knott, did you know the negro that 
the defendant is alleged to have killed?" The question was a per- 
fectly legitimate one, as an apparent predicate laid for the pur- 
pose of proving the dangerous character of the deceased, and 
no objection was made to it. Instead of replying by a simple 
affirmative, Mr. Knott looked at the jury, broadly grinning, and 
said before any objection could be interposed, "I guess I did. 
Didn't I shoot his legs full of bird shot one night at Courtney 
while he was trying to climb into the bedroom of two young white 
ladies?" The District Attorney sprang up, shouting, "I object, I 
object," but he was too late. The bolt had been shot. The poison 
had been injected into his case, against which there was no 
antidote in the law. The District Attorney pulled his mustache 
and turned white, and then red, and Major Boone, after asking 
the witness a few other meaningless questions, dismissed him. 

It would have been most impolitic for the State to have cross- 
examined, because though the testimony was utterly irrelevant, it 
was absolutely true, and cross-examination would but have in- 
tensified its effect. 

Though the liberty of a young man of respectable family was 
at stake the round head, and the good natured grin of the witness 
and the indescribable way in which he made the interrogative 
response, was irresistibly amusing, and the inability of the Dis- 
trict Attorney to conceal the fact that he realized he was smitten 
"under the fifth rib" made the whole scene serio-comic. The 
rest of the proceedings were perfunctory, though I charged the 
jury the law as applied to the legitimate evidence, but "Mr. Knott" 
had decided the matter of the verdict. 

Some days later Major Boone said to me: "Norman (he always 
addressed me that way out of court), I did not like to do what 
I did in the court the other day, but I could not see that boy go 
to the penitentiary and his good old grandmother die of a broken 
heart. I told Tom Knott you might likely fine him $50, and if 
you did, I would pay the fine. It was my only way out, and Tom 
Knott told the absolute truth." 

I was sure that the witness had toFd the truth, or that at least 
Major Boone believed what he was going to swear to what was 
true, for if he had not, no influence on earth, not even his love 
and sympathy for his aged friend, could have induced him to put 
the witness on the stand. 

In the same court a negro was indicted for murder. He had 
stationed himself at the end of a corn row and emptied a double- 
barreled shotgun into one "Sam Sparks," another negro. He was 
a big burly negro and I had him brought into court and assigned 



AND OTHER PUBLIC MEN OF TEXAS 243 

him counsel. I said, "Are you ready to go to trial?" He said, 
"What you talkin' erbout — trial "bout what?' " I said, "The grand 
jury says you shot Sara Sparks." He scratched his head and said, 
"Sam Sparks? Sam Sparks? Seem lak I been heerd dat name 
so'mers, but I disremembers whar it wuz. Sam Sparks? Me 
shoot Sam Sparks? I ain't got no 'membrance of shooting no 
sich nigger." I said, "You will go to trial tomorrow." He said, 
Mr. Jedge, I tell you whats de trouble. My brains is all done got 
outside of my haid like grapes, and I can't get 'em back. Dat's de 
reason I ain't got no 'membrance 'bout dat nigger Sam Sparks; 
but s6em lak I heerd dat name 'fo' dis time. I speck my brains 
done been got back in my haid by termorrer, so I lak to go back 
to jail," so I let him go. 

The District Attorney felt certain of a conviction, but he sensed 
a purpose to interpose a plea of insanity to prevent a trial at all, 
and his vision of a fifty-dollar fee appeared to be growing dim. 
Next morning the negro's assigned counsel said he would enter 
a plea of guilty to murder, with the understanding that the death 
penalty would not be assessed. 

I, of course, told him that I had nothing to do with the penalty 
beyond instructing upon it. The "crazy" negro got life imprison- 
ment. I never knew till long afterwards, — perhaps after I left 
the bench, that the whole scene was planned by his assigned 
counsel to save his neck. The "crazy" negro played his part 
with consummate skill. 

It is impossible to translate into printed words the amusing 
picture presented by the negro seemingly struggling, and striving, 
to remember the name of a negro he had shot to death only a 
few days before. 

A previous District Attorney of the same district was a great 
joker, and jester, and his indulgence in the habit resulted on one 
occasion in his overwhelming embarrassment, and the corre- 
sponding amusement of a large crowd in the court room. 

An old colored brother was charged with the theft of a yearling. 
He insisted most strenuously that he was innocent "fo' Gawd," 
but wanted to know how he could get out easiest. The District 
Attorney said, of course, jestingly: "Just give me a yearling, and 
I'll nol pros your case." "No, sir, I ain't gwine to give no deestrict 
attorney my yearlin' when I ain't done nothin' to go to no pen 
fur." The case was called and the witnesses began to file in, 
and the old darkey got very nervous. When the State announced 
ready the old darkey, who was still sitting out in the body of the 
court room, rose and said: "Mr. Deestrict 'torney, I'll done it. 
I'll 'cept your proposition. You nul sqush de case and I'll give 
yer de yearlin' like you sayed." It was sometime before the 
court could restore order, but the "deestrict attorney" was cured 
of jesting with defendants, — at least in that way. 



244 GOVERNORS WHO HAVE BEEN 

In that court house where comical situations provoked uncon- 
trollable mirth I recall what was nothing less than a tragedy. 

A young man just merging into manhood was being tried for 
murder. His father was a most worthy citizen, and his locks were 
slivered by the snows of many winters. The boy, drunk on the 
meanest of crossroads liquor, had killed a neighbor. Though de- 
fended by one of the ablest lawyers in Texas, acquittal was im- 
possible, and the jury gave him seven years in the penitentiary. 
When the verdict was read, the old father rose, and bending 
under the weight of years and ill health, walked towards the door 
of the court room, his white hair barely visible in the dim and 
flickering light of a kerosene lamp. His form was so bent over 
as that he seemed to say: "My burden is more than I can bear," 
and as he passed out into the night, while his "boy" was going to 
jail, my heart went out to him, though I had never known him. 
I heard afterwards that the old father survived the crushing blow 
only a short time. 

Perhaps fifteen or twenty years had rolled around, when one 
day I chanced to be in the same town, and went into the court 
house. A man met me and grasped my hand cordially, and said:' 
"Judge, I am glad to see you. Do you know who I am?" I ad- 
mitted I did not. He then told me who he was and it was the 
young man who got seven years for murder. I told him I was 
glad to see him and hoped he was doing well. He thanked me, 
and said : "I took my medicine, and have been doing well since 
I came out." I said, calling him by his given name: "I must 
say that as I recollect the facts you got off light." His reply was: 

"I wonder that they hadn't broke my d n neck." He had cause 

to congratulate himself. 

The picture of that gray-haired father passing out into the 
night, broken-hearted, mourning for his boy even as David 
mourned for Absolom, is indelibly graven on my memory, and 
the recollection of it intensified the solemnity of the scene, when 
in duty bound, I passed sentence on his wayward boy. 

There was then and there revealed an instance of the pathos 
of the court room. That boy, like hundreds of other boys, was the 
victim of liquor, and the procession of its victims from the 
courthouse to felons' cells was almost endless, yet men strove, and 
fought, and spent, to prevent the abolition of a traffic the ffuits 
of which were crime, dishonor and death. 

We see often in court rooms exhibitions of the spirit of man- 
hood and friendship and devotion to principle, that is above all 
price, or the temptation of sordid gain. 

A man charged with murder was tried before me. The slain 
man belonged to a good family who desired to employ private 
counsel to prosecute. The facts revealed a social and family 
tragedy involving the good name of a woman. 



AND OTHER PUBLIC MEN OF TEXAS 245 

The defendant had served gallantly four years in one of the 
most famous fighting bridgades in the whole Confederate army, 
and the first lawyer approached with a view to his being em- 
ployed to prosecute, had been a comrade of the defendant. 

He, without a moment's hesitation, declined to consider the 
employment, and no amount of fee could have tempted him to 
prosecute the fellow soldier side by side with whom he had 
dared death on a score of bloody fields. 

In the same county a white man who had served gallantly in 
the same brigade just referred to, was charged with killing a 
negro. His plea was self-defense. One trial resulted in a hung 
jury. When the case was called for trial next time one of the 
ablest lawyers in Texas, and one of the most chivalrous soldiers 
that ever bled for his country, and whose empty sleeve bore silent 
testimony to his courage, announced that he would appear for 
the defense. I had reason to believe the defendant had no money, 
and knew some strong motive prompted the action. 

The defendant was acquitted, and the next day the counsel ex- 
plained why he defended. He said: "I became convinced that 
the whole constabulary force of this county had combined for 
personal reasons to convict that defendant. I knew, too, that the 
defendant had been a gallant, faithful Confederate soldier who 
followed Lee for four years, and I meant that he should have a 
fair trial. I'll swear that no Confederate soldier shall ever be 
railroaded to the penitentiary while I am able to defend him." 

On one occasion in Grimes County a little negro about 18 years 
old was put on trial for burglary. He was very unskillfully de- 
fended, but really needed no defense. To my surprise he was 
convicted. Major Boone chanced to be sitting in the court room 
and heard the trial. As we walked down to dinner at the hotel 
he said to me: "Norman, that conviction is an outrage, and I 
have too much respect for the law of my State, and too high a re- 
gard for my obligation as a lawyer, to be content to sit idly by 
and see justice so outraged, and I am going to take hold of the 
case." As I agreed fully with him, I said: "I hardly think you 
need trouble yourself. Major, I will take care of the boy," and 
I promptly granted a new trial, and there was never another. 

Major Boone had no possible interest in the ignorant, humble 
little "nigger," but if I had not granted a new trial he would 
have flung himself without reserve of skill or energy, into his 
defense — out of his chivalrous love of right and justice. 

The same splendid gentleman was a faithful democrat, and at 
one election exerted himself strenuously to defeat a certain man 
for re-election as sheriff, who was most obnoxious to the demo- 
crats, and succeeded. The defeated man preparatory to a contest 
desired to employ the lawyer who had been largely instrumental 
in his defeat. Chancing to meet him in the road one day, and 



246 GOVERNORS WHO HAVE BEEN 



having no doubt that all that was necessary to obtain his services 
was a liberal fee, which he was able to pay, said, — "How much 
can I hire you for as a lawyer to get me my office." The reply 
most astounding to the candidate was, — "You can't hire me at 
all. Do you suppose that after I have gone all over the county 
telling the people you ought to be beaten for sheriff, that you 
have got, or ever saw money enough to induce me to go to court 
and try to keep you in the office? You can't hire me at all, and 
I want you to know it." Such men as that maimed hero was — 
make us believe that indeed "man is but little lower than the 
angels." 

I have no idea that he received a penny in the way of a fee in 
any of the instances related above. 

As I said in the beginning of these desultory rambling sketches, 
it seems to me that such incidents as I have related concerning 
one who did honor to his profession, and to his state, reveal 
more clearly the inner real man than could be done in any other 
way. 

They interpret his impulses, his motives and the ideals of duty, 
he cherished, and the standard by which he shaped his personal 
and professional conduct. 



AND OTHER PUBLIC MEN OF TEXAS 247 

CHAPTER XXXV. 
MEMORIES OF THE COURT ROOTM. 

I had occasion many years ago to stay for several days in an 
interior town 35 miles from a railroad. District Court was in 
session and an attorney who I happened to know, had been ap- 
pointed to defend a white man charged with murder of a negro 
with whom he had been gambling, and he asked me to help him. 

The man was very vigorously prosecuted, and the local counsel 
and I together succeeded in getting him into the penitentiary for 
99 years. We got interested in the defendant, and appealed and 
reversed the case. 

A year rolled around before the case was reached again, when, 
though I lived a hundred miles away, I went back to the court 
and paid the way of a witness, — it being before witnesses re- 
ceived fees. 

I did not know anything about jurors in that county, so I took 
any man who said he would give my client a fair trial. 

The witness whose way I paid the way of was unquestionably 
present when the killing took place and testified that the negro 
applied to the white man an epithet so foul I cannot repeat it 
here. I said to the jury, — "he not only called him , but pre- 
fixed the epithet with d — , and followed that with 'poor white,' 
and I say that neither the law of honor nor the law of manhood 
required any white man to take such an insult from a negro, and 
I believe this jury agrees with me. About half the jury nodded 
hearty assent to my statement. When they did so the old judge 
(for he was quite old) took up his charge and started with a 
pencil and wrote around the edges, — "I charge you first that the 
defendant is not being tried by the law of honor or the law of 
manhood but by the law of Texas." When he came to read his 
charge he began with the addendum, and as he proceeded, and 
whenever he reached a part which was to be followed by pains 
and penalties he would interpolate verbally "mark you gentle- 
men, mark you." 

A friend to whom I once related the remarkable proceeding 
asked me why I didn't take a bill of exceptions to the court's 
charge and his interpolations. I said, — "Because I had twelve 
bills of exceptions in the jury box." The defendant was acquit- 
ted in ten minutes. 

A few days later he came to the village in which I lived and I 
got him employment and loaned him a little money. In a few 
days he quit his job and decamped without repaying me. I con- 
cluded I had made a mistake in being instrumental in turning 
so worthless and ungrateful a wretch loose. His kind are only 
fit to adorn (?) jails and penitentiaries. 



248 GOVERNORS WHO HAVE BEEN 

The old judge lived on a farm several miles from town, and 
came in every morning in a gig or buck board. 

I met him coming in as I was going back to the railroad. He 
said, — "Good morning, sir. You made the most outrageous 
speech yesterday I ever heard, but it was the speech for the case, 
and I wish you good luck." He was an honest old man, and by 
no means devoid of ability, but was the kind of judge which has 
cost Texas millions of dollars by acting under the delusion that 
the only province of a criminal trial is to convict and thereby 
becoming counsel for the prosecution, and committing reversible 
error. 

A bystander in an East Texas Court who had intelligence 
enough to understand the tenor and effect of a charge in a crim- 
nal case, after listening to one delivered by a thoroughly honest 
judge whom I knew, but who believed in convictions, said, — 
"I'll swear, I always heerd that the State had only two speeches, 
but in this court she's got three. The deestrict attorney makes 
two and the jedge makes tother." 

The judge last referred to was inclined to be very strict and 
rigid in the conduct of his court, and disinclined to encourage 
or permit levity. He had misdemeanor jurisdiction in one 
county, and had sent a defendant to jail, in default of payment 
of a fine. 

A half-witted boy in the town came by the jail, and the prison- 
er said, — "Will you take a message to the judge and district at- 
torney for me? I can't get out of here you know." The boy 
said, — ^"What is it?" The prisoner told him. The boy said, — "If 
I go thar and tell that jedge that he will put me in jail." The 
prisoner said, — "Oh, no, he won't. It won't be you telling it for 
yourself, but for me." The prisoner pursuaded the boy to go, 
and when the boy got before the judge the latter said, — "Well, what 
do you want?" The boy turned his ragged hat like a wheel be- 
tween his fingers, and trembling all over said, — "That fellow in 
jail told me to tell you and the deestrict attorney something for 
him, but I'm skeerd to tell it." "Go on, go on," the judge said. 
"If I tell it Mr. Judge you ain't goin' to fine me or put me in jail 
is you?" The judge said "no, of course not. Go ahead and give 
the message." "Well — well, er, that fellow sayed to tell that d — 
jedge and deestrick attorney to go to h — I." The judge blushed 
deeply, as did the "deestrick attorney" but kept his word, and 
the messenger was not fined or imprisoned. The boy may have 
been half-witted, but he was smart enough to have uninten- 
tionally, or by design get the judge committed, or he would have 
been in jail in ten minutes. 

Referring again to prosecuting judges, they do not appreciate 
the fulness of their error. They are really prompted by the de- 
sire to see the law enforced, and do not want to see guilty men 



AND OTHER PUBLIC MEN OF TEXAS 249 

escape either through technicalities, or the ingenuity of coun- 
sel, or laxness or corruption of juries, and such a spirit is com- 
mendable of course, but whether a defendant is convicted, or 
acquitted, is no official concern of theirs. 

Their duty is to rule in, or rule out, evidence, and charge the 
law applicable to the facts, and nothing more. 

Furthermore the conception that every acquittal is an outrage 
on the law, and that only conviction is its vindication is radi- 
cally erroneous. More men are convicted than are acquitted, and 
about as many are convicted as ought to be. 

I have no mushy maudlin sentimentality about criminals. I 
have sentenced three defendants to the gallows and they were 
hanged, but the eternal howl about criminals escaping convic- 
tion is for the largest part, the veriest rot. 

The courts do not of course always function perfectly. No hu« 
man agency has ever yet done so, and when some jury renders 
one outrageous verdict of acquittal the public is shocked, but it 
pays no attention to the ten verdicts of conviction. 

Some two or three years ago I went for the first time in many 
years into a criminal court for the purpose of defending a "black 
sheep" of a worthy family, upon the request of his brother. 

The defendant was acquitted and as I recall that was the third 
acquittal out of 103 trials. Every one of the defendants re- 
ceived, as I believe, a fair trial, because Cornelius W. Robin- 
son, criminal district judge of Harris County, and E. T. Branch, 
the district attorney give every defendant a "square deal." That 
judge, like most judges, thinks some provisions of the law are 
not wise, and he is sometimes very loath to give them in charge 
to the jury, but he will do so if precedent demands such action. 

In the recent past a brother lawyer, and a very capable one, 
brought me a- number of special charges which he said he in- 
tended asking the judge to give in a case in which the defendant 
set up as a defense that he had seen the deceased — a soldier — 
and his (defendant's wife) together under such circumstances 
as led him to believe that illicit relations existed between them. 

The attorney asked me to look over tire charges and tell him 
what I thought of them. I knew before I looked, that those 
special charges, like all others, were an abomination in the law, 
and I said — "I never gave a special charge in a criminal case in 
my life, and I will not review yours, but I will write just such a 
charge as I would give were I on the bench as my friend the 
judge is, and such a charge as you will find in my hand-writing 
in the same court, in an identical case." 

I proceeded to do so and when I had finished the charge I ex- 
amined the case of Price vs. State, XVIII Criminal Appeals Court 
to see if the charge was correct as I had not examined that re- 
port in many years. The charge was correct. 



250 GOVERNORS WHO HAVE BEEN 

I chanced to meet the Judge before he delivered his charge and 
as we were boys together, and had been friends for many 
years, he talked freely to me about it. He said, — "I think I detect 
your fine Italian hand in that charge which counsel for the man 
on trial has handed to me." I said, — "Yes, I wrote it." He said, — 
"I don't believe in any such law." I replied, — "That may be, but 
it is settled law in Texas, and if you refuse to give it, or give what 
amounts to the same in legal effect, you will be reversed." 

I had nothing to do with the trial, but I heard afterwards the 
substance of the charge was given. 

The defendant was acquitted. I do not recall ever having been 
reversed for refusing special charge in a civil or criminal case. 
At one session of the Supreme Court, and the Court of Criminal 
Appeals at Galveston, I had 17 cases, civil and criminal, before 
them, and 15 were affirmed. 

So long as any Judge holds to the view that it is his duty to see 
that the defendants are convicted, so long will judgments ren- 
dered by him be reversed. The law is no more vindicated when 
pains and penalties follow its decrees; than it is when some 
Innocent man, or some man whose guilt is not proved beyond a 
reasonable doubt, — which is the same thing in law, — is acquitted. 

There was nothing more God-like in the handing down of the 
decalogue to Israel at the foot of Sinai, than there was in speaking 
'mid the awful travail of Calvary, pardon and peace to the dying 
thief. 

It is very rare that a District Attorney can safely object to 
admission of evidence. If the jury are given all the testimony 
that will throw any light on the case, they will get at the right. 

If a jury once gets the idea that evidence is being excluded at 
the instance of the State, which if introduced would reveal the 
whole truth, the defendant is half acquitted then. 

A QUARTETTE OF ABLE LAWYERS. 

Civil cases are sometimes as interesting as those of a criminal 
nature, because there is nothing more interesting than is a new 
and close question of law, when discussed by able lawyers. 

I had before me in one case Judge Sam Streetman of Houston, 
L. M. Dabney of Dallas, his brother, S. B. Dabney, and Presley K. 
Ewing of Houston, and it goes without saying that no point was 
overlooked, or any legitimate argument left unpresented. 

Four such lawyers rarely appear in one case. 

The question involved upon which the plaintiff's right to recover 
depended, was in a sense one of first impression, and as I recall, 
all four of the able lawyers discussed it, and the discussion was 
an enjoyable legal treat. 

As I recall. Major John Lovejoy was also present, but he took 
no part in the discussion, except at some unexpected time he 



AND OTHER PUBLIC MEN OF TEXAS 251 

would interject some more or less relevant suggestion, and one 
which, in his inimitable way, injected such element of amuse- 
ment into a cold discussion of a question of law, as would have 
disturbed the solemnity of a Chinese funeral. 

If it was held that under the facts the plaintiff could recover, 
and his injuries came within the terms of the indemnity con- 
tract, it would have constituted a pioneer case. 

The impression made upon my mind was that all the parties 
were afraid to risk a decision of the Supreme Court, and as I 
recall, a compromise was arrived at, but not before Presley K. 
Ewing had for plaintiff by his ingenious reasoning carried the 
law, as he thought it to be, to a limit it had never before been 
carried, so far as I recall. 

After the case had ended. Judge Streetman and I concluded 
that plaintiff's counsel would risk losing a case regardless of its 
magnitude, in order to establish a new rule of law. 

He has successfully pioneered many times, and is not afraid to 
venture out into new fields, because he is a lawyer worthy of the 
steel of any foeman, and in my judgment has no superior as a 
lawyer at the bar of Texas. I believe many others will agree 
with me, and I do not believe that the sincere esteem and affection 
I have for him, the fruit of a friendship of more than thirty 
years duration, has biased my judgment. He practiced before 
me almost continually for eleven years, and I feel that I know 
whereof I write. 

I have had but little occasion to complain of the treatment I 
have received at the hands of trial courts, or indeed of any court, 
hence do not mean to imply any invidious distinction between 
judges when I say that I recall the late Andrew P. McCormick as 
one of the most satisfactory, if not the most satisfactory judge I 
ever appeared before. 

He, of course, was a much older man than I, and in politics 
was a Republican, — a fact, he being a native Texan, I found it 
hard to forgive, but he knew no politics on the bench. 

When I was a young man, just married, and living in a most 
modest way, he was frequently a guest at my very humble board, 
and my wife and I cherish grateful recollections of his friendship. 

He had one quality or element, or whatever it might properly 
be called, which is a propulsive power in any man, and that 
was self-confidence. It did not find expression in boasting, or 
vanity, or self-assertion, but he had confidence in his own 
knowledge of the law, and being an educated man of strong 
native intellect, and thoroughly grounded in the common law, 
and familiar with Texas statute law, his confidence was justified. 

What I remember most clearly was his common sense, and his 
sense of justice, and what was, if possible, even more admirable, 
his readiness to admit his own error when he became convinced 



252 GOVERNORS WHO HAVE BEEN 

he had erred, of all traits in a judge the most admirable. None 
but big men possess it. 

I heard the late Chas. L. Cleveland ask to take up the motion 
for a new trial in a case tried before him without jury. He said: 
"You need not discuss the motion, Judge. The court erred, and 
erred most egregriously. The motion is granted." 

When quite a young man my older pai'tner preseiited a motion 
for a new trial in a case tried before a jury. Judge McCormick 
said : "I have, for some reason, an impression that justice has 
not been done in this case. If plaintiffs are entitled to take half 
of the defendant's home, they can prove their case again. It may 
be that evidence can be discovered which will show they ought 
not to take it." 

Before the court met again written and irrefragible evidence 
was discovered, which, when shown to plaintiff's counsel, who 
was a gentleman, he dismissed the action. 

The keen sense of justice of an honest judge saved for the de- 
fendant the fruits of years of honest toil. 

A smaller, narrower man of this kind that subscribes to the 
doctrine of jury infallibility would have tjaid: "The jury are 
the judges of the facts, and I have no authority to invade their 
province. The motion is overruled." 

No man believes more strongly in jury trials than I do, but I 
do not believe in making a fetich of them. 

Twelve jurors who have heard conflicting testimony for days, 
and sometimes for weeks, and been argued at by lawyers, each 
side contending that a verdict for the other side would be an act 
of gross injustice, are just as apt to go off at a wrong tangent 
and do a foolish thing as is any one of the individual twelve 
units. They are by no means immune against error, but often 
err egregriously, as Judge McCormick said he did. 

The plaintiff in a slander case once began to introduce evi- 
dence to prove the utterance of the slanderous language. Judge 
McCormick says: "Why do you take the time to prove your 
allegations? The defendant plainly admits using the language." 
I had not at the time had much experience in the practice, but I 
had drawn the answer, and I said: "Your honor, plaintift' cannot 
use our admissions as a weapon to destroy the effect of our 
general denial." He said: "I never heard of a case where you 
must prove what a man admits, but it is now the noon hour, and 
when court opens again you may be able to produce authorities." 

I knew I could, because I drew the answer with the authority 
before me: Fowler vs. Davenport, 21 Texas. 

When I presented it he said: "You are right, and I am wrong. 
Go ahead, gentlemen, and prove your case for the plaintiff." 

I do not know whether many judges felt as I did, that they 



AND OTHER PUBLIC MEN OF TEXAS 253 

had rather try a whole docket than to hear one sharply contested 
motion for a new trial, but I so felt. 

The action of courts on motions for new trials has been the 
cause of more harmful prolongation of cases than has any other 
action exercised by courts, and more injustice has been done 
by granting than by refusing new trials. 

This is true, because if a new trial is refused, the way of cor- 
rection is open and easy, but if it is granted the other side is 
helpless. Such a condition of law is iniquitously unjust. 

It has happened times without number that capable lawyers 
have, after most careful preparation, brought actions, and recov- 
ered just verdicts, with the result that because the judge has 
conceived the idea that he has probably erred in giving, or re- 
fusing charges, or in admitting or excluding evidence, he destroys 
with one stroke of his pen the work of months,— perhaps of 
years, and often the loss is irretrievable. 

No judge, though he be a Mansfield or a Marshall, can know 
as much about a case by hearing it tried as a capable lawyer 
knows who has studied it from every angle, and collected authori- 
ties on every point, and no judge can have any more interest in 
a case being tried correctly than has the man who brought it. 

Many an able lawyer has won a victory he ought to have won, 
and been willing to risk his case on the law in the appellate 
courts, but was denied the right by the trial court to have it 
carried up; yet a judge is just as apt to err in determining 
whether he erred, as he is when he originally acted. 

If the man against whom the motion is granted, had any possible 
way of relief in Texas, there would not be so much ground for 
complaint, but he is absolutely as helpless as if his hands were 
tied while firebugs set fire to his home. 

Of course the mere intimation, much less contention, that there 
should be in Texas the right of appeal from motions granting a 
new trial just as there is from the refusal of one, will be received 
in some quarters as rank heresy. 

The adage of the mossback is, "what has always been must 
always be, and what has never been must never be," and such a 
principle of action is absolutely at war with any progress in 
jurisprudence. 

All wisdom did not die with "the fathers," and because they 
did not provide for appeals from orders granting new trials, is 
no reason why such a statute would not be wise, and promote 
the hastening of final determination of litigation. 

The "fathers" did not allow any man in any case to testify in 
his own behalf, nor did they allow any man, however unjustly 
convicted, to go at large on bail pending appeal, but a more en- 
lightened policy now prevails by statutory provision. 

All that is necessary is a simple statute providing, in eflTect, 



254 GOVERNORS WHO HAVE BEEN 



that appeals from judgments granting new trials may be taken, 
and when taken shall be prosecuted and conducted in like manner 
as is now provided in cases of other appeals. The statutes of 
Texas will be inexcusably defective until they contain such a 
provision. 

Such is the law in Missouri. Within the recent past more than 
once it has been availed of in that State, — indeed it is almost so 
often used as are appeals from orders overruling new trials. 

In the last case I read from that State a woman recovered upon 
an insurance policy on the life of her husband, a verdict for 
$5,000.00. The court was of the opinion that, under the law, the 
facts being practically undisputed, plaintiff had not the legal 
right to recover, and he therefore set the verdict aside. 

Had the woman been unfortunate enough to have been com- 
pelled to sue in Texas, she would have had no road open to her 
to obtain relief, but would have been obliged to have waited and 
tried her case again, and run the risk of having another verdict 
set aside. 

In Missouri she appealed and the appellate court set aside the 
judgment, granting a new trial and re-established the verdict, — a 
sensible, practical, just way to proceed, and a way that should be 
provided in Texas. 

If the attorney for any litigant is willing to back the verdict 
he has recovered to the extent of the costs of an appeal trom 
an order granting a new trial, he ought to have the right to do so. 

I once tried a case before my old friend. Judge L. B. High- 
tower, Sr., in Liberty County. 

I represented the Western Union Telegraph Company. The 
argument closed late at night. 

I told the Judge that if he would allow the case to go over till 
morning I would write him a perfectly fair charge. He assented, 
and next morning used the charge, which was just what I would 
have given had I been in his place. On our way back to the 
hotel the night before he said to me: "Norman, you made a 
cracker-jack speech, but it will do you no good. No corporation 
ever escapes from this bunch over here." 

When the jury came in I was at the far end of the court room. 
The verdict was for defendant, — a result almost without prece- 
dent in that court. 

The Judge was so astounded that he called to me across the 
court room: "Norman, does that suit you?" I, of course, said 
it did. 

A motion for a new trial was a waste of paper before him, and 
none was filed. 

He strongly believed in twelve bonos et legales homines, and he 
was right. 

Some verdicts are, of course, outrageous, but upon the whole 



AND OTHER PUBLIC MEN OF TEXAS 255 



juries are right on facts far oftener than courts are on the law. 
The reports will abundantly prove the truth of this statement. 

Their stupidity is sometimes irritating. After a three days' 
boundary trial before me, in which, as is usual in such cases, 
there had been a swearing duel between surveyors, the jury came 
in, headed by a fine-looking man of apparent intelligence, who 
said: "We want to ask one question. We want to know where 
the original surveyor put the line between the two tracts of land." 
I said: "If the parties knew that you wouldn't be here. That is 
just what you were sent out to determine." 

If the richest and most influential man in his (Judge High- 
tower's) district was a party to a case tried before him without 
a jury, and that man was shown to have been guilty of, or a 
party to anything fraudulent or "crooked," he would excoriate 
him in burning words in delivering his oral conclusions upon 
the facts. 

He had no fear of any man's influence, and he loathed dis- 
honesty with unspeakable bitterness and contempt, and was not 
afraid to say so. Honesty, courage, impartiality, and legal ability, 
made him a Judge before whom every man could appear with 
confidence that his cause would be ably and impartially tried. 

He was a better Judge asleep than some I have seen were when 
awake. 

On one occasion a valued friend of mine, Finney McDonald, 
a good lawyer of Montgomery County, and I were trying a tele- 
graph case. In the course of the trial he objected to an inter- 
rogatory and to the answer: I said: "That's perfectly admis- 
sible," but he was not convinced as the answer contained in fact 
the core of my defense, and as a verdict for the defendant in 
Montgomery County was almost as unusual as one in Liberty 
County, I was as anxious to get the answer in as he was to keep 
it out. 

It was after dinner, and the day was cold, and the Judge sat by 
the stove and had gone sound to sleep. I insisted that he be not 
disturbed, but my insistence was unavailing, so I gently woke 
him up. He said: "Well, what's the trouble?" I said: "I have 
asked the following question, which you can read. It and the 
answer are both objected to." He read both and instantly said, 
"objection overruled," and dropped his head back and in ten 
seconds wa^ asleep again. 

When the argument was over he gave a perfectly unobjection- 
able charge, and in about three and a half hours the jury returned 
a verdict for defendant. My friend on the other side was out- 
raged, and was sure the inadmissible (as he thought) evidence 
was responsible for the result. So far as I knew, or know yet, 
the identical question had been passed on but once in Texas, and 
that was in a telegraph case, reference to which I agreed to send 



256 GOVERNORS WHO HAVE BEEN 



my disappointed opponent. I did so immediately on my return, 
and he did not even file a motion for a new trial. 

Another Judge, whom I assume was awake, had excluded evi- 
dence absolutely identical and the judgment was reversed. While 
writing this, I examined the case which I sent the losing side, as 
just stated. 

My longest remembered memory of the bench is, if I may per- 
petrate an "Irish Bull," when I never reached it. The day I was 
twenty-six and one-half years old I was nominated for District 
Judge of the Galveston Court, but a combination of independent 
Democrats and Republicans defeated several Democratic candi- 
dates, myself among the number, by small majorities. 

That against me was 108, while some of my colleagues got 
through by less than one-tenth of that number of votes. 

Judge Stewart was elected by perfectly legitimate politics, and 
held the position for about thirty years. 

Judge Andrew P. McCormick defeated Judge Chas. L. Cleveland 
for State Senator. 

Judge Stewart was a good lawyer, and made a capable judge, 
and was a kindly, amiable man of unquestioned integrity. He 
practiced law before the Civil War and stuck to his country 
habits, and put on no frills, — indeed not as many as he should 
have done. 

On one occasion the head of the Galveston Bar, who believed in 
observance of judicial appearance and propriety, escorted a New 
York lawyer to the court house to call on Judge Stewart. The 
New Yorker was accustomed to judges in gowns and seated apart 
far from humbler men, the very embodiment of judicial dignity. 
It was a hot day and Judge Stewart was trying a dull case. He 
had his coat off, both feet hoisted on the judge's stand, and was 
leaning far back smoking a cob pipe. The local lawyer, knowing 
how his guest felt, was deeply mortified, and it can be assumed 
the visitor was horrified, but he never saw a judge who had a 
cleaner official record than the Texas judge who so shocked his 
sense of judicial propriety. 

The incident reminds me of one very similar which was related 
to me by a friend in Houston, one of the ablest lawyers at the bar. 

He once lived in the country, and an old country friend had 
called to see him, who was uneducated, roughly dressed, un- 
familiar with city ways, brawny and unshaven, but was a manly, 
honest, plain-spoken old hero. While the two were discussing 
old times there came in a New York lawyer who was associated 
with the Houston lawyer in a case. He was dressed in the latest 
product of the sartorial art. The Houston friend said: "Mr. 
Winslow, allow me to present you to my old friend (giving his 
name), who was a brave soldier in war, and is a worthy and 
honored citizen in peace." The New Yorker acknowledged the 



AND OTHER PUBLIC MEN OF TEXAS 257 

introduction with gracious courtesy, and the introduction was 
hardly over before tlie old "Confed" said: "Cap'n (meaning Tiis 
Houston friend), talkin' 'bout de war, when I got home from 
Virginny I didn't have a dollar. Thar wuz a nigger on my place 
what had eighty dollars, and he 'lowed as how he wanted to play 
poker. We clum up in de fodder lof and I won ever dollar of 
dat nigger's money." The Captain, desiring to smooth over the 
contretemps, said, in his courtly, suave way : "Now you see, Mr. 
Winslow, the results of war. My friend romanced so much in 
camp that everytliing he thinks about he believes to be true, and 
he has imagined a story on himself." The old "Confed" didn't 
intend to have his veracity impeached, so he said: "You're 
wrong, Cap'n, Hit ain't no story. Hit's the God's truth. I sho' 
did skin dat nigger outen eighty dollars." The feelings of the 
"Cap'n" can be imagined, but not described. 

The old "Confed" said to me one day: "Judge, kin I git ofTen 
the jury. I don't want to send nobody to the penitentiary or hang 
'em, and I ain't gwine to do it." "Oh, yes, I reckon I would, too, 
if the law and the evidence said do it. I'd do what I swore." He 
stopped for a moment, and then added with vehement earnest- 
ness: "Unless he belonged to Hood's Brigade. I'll swear I wouldn't 
send no Hood Brigade man to pen or the gallows. They done 
suffered enough, God knows." 

A tragedy crossed the life of that humble, sturdy old hero, and 
he was brouglit before me charged with homicide. He called a 
man to account for language used concerning a member of his 
family. A difficulty arose, and he killed the man. It was dis- 
tressing, and grieved me deeply, as I knew and esteemed both men. 

When the indictment was returned I told the sheriff to with- 
hold execution of the warrant of arrest till the second day. I knew 
that the Reunion of Hood's Texas Brigade was to be held next 
day ten miles away, and the stalwart old defendant would want to 
mingle with his old comrades, and he was entitled to bail and 
could give a hundred thousand dollar bond, if necessary. 

The next day he did not wait to be arrested, but came in and 
gave bail. He was, of course, acquitted. He was amusing in his 
sincerity and simplicity. 

Misfortune fell hard upon the old fellow, but he bore it like the 
man that he was. I trust he rests in a peaceful tent on the eternal 
camping ground "beyond the river." 

HON. GEORGE MASON— A GREAT LAWYER. 

A case was tried many years ago in Galveston in which the 
late Colonel George Mason of that city played a most surprising 
part. The facts were related to me by Colonel D. A. Nunn of 
Crockett, as he and I rode over the sand hills of Leon County one 
hot afternoon. 



258 GOVERNORS WHO HAVE BEEN 

When memorial resolutions were presented, years afterwards, 
in honor of Colonel Mason at a meeting of the State Bar Associa- 
tion I summarized the facts in a brief address, and Colonel Nunn, 
who was present, told me afterwards he had forgotten he had 
ever related the incident to me, but that I had repeated the facts 
almost verbatim. 

Colonel Nunn had spent two years in preparation of the case, 
and it took three weeks to try it. Single depositions cost as much 
as $50. 

As I recall, Asa H. Willie and Charles L. Cleveland represented 
the defense. That it was well represented all who read this 
will know. When the case was to be argued one morning. Colonel 
Nunn went the night before to Colonel Mason's house, to plan 
the order of presentation of the mass of testimony. 

To his astonishment and alarm Colonel Mason seemed to have 
no clear conception of a single issue, and scarcely talked coher- 
ently about the case. Colonel Nunn left almost in despair. Next 
morning he opened for the plaintiff, and counsel for the defense 
followed with arguments such as might have been expected of 
such lawyers. Colonel Mason had not proceeded far in his clos- 
ing speech before the accuracy of some date, or amount, or 
record, referred to by him was challenged. 

There had been books of account, accounts of sales, drafts, 
stated accounts, and almost every conceivable kind of written 
evidence reaching back for years, and he had not made a single 
memorandum, or at least had none in hand. 

He was a large, stately, ponderous kind of a man, deliberate 
of speech, and slow in movement. He said: "I refer to the rec- 
ord." The record sustained him, and every interruption met 
the same reply, and the same result followed. Not once was he 
in error. For seven hours he stood before the jury without the 
scratch of a pen, or a note, or word, or phrase set down as a 
reminder, depending on nothing but his great intellect and mar- 
velous memory. 

He secured a verdict for every dollar — forty thousand or more, 
that he sued for. 

There is not one man in ten thousand capable of such an 
achievement. 

Colonel Mason evidently was in agreement with Judge Roberts, 
who said: "Never use a pencil, or paper, or make a note when 
trying a case. Depend wholly on your memory." 

There is much sound philosophy in what the old judge said. 
The memory, like any other faculty, becomes weakened and often 
atrophied, if not cultivated and exercised. If we forsake reliance 
upon it and depend on writing, it will cease to function in a large 
measure. 

George Mason was a son of the Mason who figured in the 



AND OTHER PUBLIC MEN OF TEXAS 259 



Mason-Slidell incident during the Civil War, and grandson of 
George Mason, who wrote the famous resolutions of 1798, which 
have furnished so many politicians a theme for argument, or at 
least for declamation, and was a great lawyer. 

The collection of the judgment was almost as remarkable an 
achievement as its recovery. As I recall, Colonel Nunn told me 
it took several years, during which he was once shot at by the 
defendant, but his zeal knew no abatement, his industry was un- 
flagging, his persistency phenomenal, his courage dauntless. He 
conceived the idea that what purported to be a dresser or a 
bureau in the defendant's house was in fact an iron safe. No 
constabulary officer could, of course, break into the house, but 
Colonel Nunn succeeded in a perfectly legitimate way in making 
a levy on the dresser (?) and was rewarded to the extent of 
about $30,000. 

Colonel Nunn appeared before me the first hour after I took my 
seat as Judge of the Twelfth District, in some very important 
matters, and my ruling very much offended him, — so much so 
that for years he refused to exchange the common courtesies of 
social life with me, and declared, I was told, that I was a "kid 
judge who developed in a day into a Jeffreys," but he was, while 
a man of strong feeling, at heart a just man. Several years rolled 
around and I found myself in his home town sitting as Judge in 
a case in which he took a leading part. He had not exchanged 
even the customary salutations with me, and tried the case, and 
made all objections as if he had a personal grievance against me, 
and the attorneys on the other side. 

When it had been submitted to the jury he approached me and 
said: "Judge, come with me and I will drive you over our little 
town and around it." I, of course, cheerfully accepted his invi- 
tation, and after a delightful drive he carried me to his elegant 
and hospitable home, where I met his queenly and noble wife, — a 
sister of Hon. Frank A. Williams, and renewed my acquaintance 
with his charming daughter, whom I had known before. 

It is a delightful memory associated with a big man physically 
and professionally, and who scorned every art of the "shyster." 

When a man who had employed him in a case was asked by 
him what he could prove, the man replied by asking him what 
was necessary to be done. He said, as he drew up to his six feet 
five, "It is necessary for you to go through that door, and go 
quick, or I will kick you through." The client went. 

JURIES. 

Those citizens who are drawn to serve as jurors serve their 
country at a greater sacrifice, — at least most of them do, — and 
get less thanks for their service than do any other public ser- 
vants, — for such they are. 



260 GOVERNORS WHO HAVE BEEN 

I believe that a very large proportion of jurors are honest and 
try to do their duty, yet they are often interrogated on their voir 
dire as if counsel think they are crooks. Their place of birth, 
their age, their family relations, their residence, their business, 
the extent of their acquaintance, and every other element, re- 
lation an-d incident in their lives, that ingenuity can conjure up 
as a basis for a question is probed into, and half of the questions 
are an inexcusable waste of words, and time, and the people's 
money. 

The man who is questioned as to fitness to serve on a jury is 
pitched from counsel to counsel as he were the ball in a game of 
battle-dore and shuttlecock, and he is led into the realms of meta- 
physics, psychology, and mental philosophy, and supposition, and 
conjecture, and probability until, unless he is a man of unusual 
intelligence, he does not know his own mind. I have thought 
sometimes that many men I have heard questioned on their voir 
dire would have been justified in returning the kind of answer 
that a man who was undergoing a civil service examination gave 
when asked, "How near does the sun ever get to the earth?" The 
answer was, "I don't know, but not near enough to interfere with 
my doing good work for the government." 

If some venireman were to say in response to such questions 
as I have heard put to men who were being examined as a pros- 
pective or possible juror, that whenever he might have been born, 
or wherever he might live, or whatever his business might be, 
he would render a fair verdict to the best of his ability, I would 
not, were I judge, either fine or reprimand him. 

I have known it to take from an hour to an hour and a half to 
select twelve men to try a civil case, when no talesmen were 
necessary, and when just as fair a jury could have been obtained 
in fifteen minutes. 

Such a proceeding is nothing more or less than a studied and 
strenuous effort on the part of each side, to see that a jury is 
obtained that will not, by any possibility, give the other side a 
verdict. 

Every lawyer knows that it is no unusual thing for it to take 
several days to get a jury in a murder case, but I have not the 
patience to write on that theme. 

The examination of veniremen is, in such cases, carried to ex- 
tremes which reflect on the court that permits such trifling with 
the law, justice, and common sense. 

If I were on the bench in the trial of a criminal case, and a 
venireman were to answer in the negative the statutory questions, 
which when answered in the affirmative make his exclusion from 
the jury mandatory, and were to say he could, regardless of 
what he had read or heard, and of what opinions had thereby 
formed, render a fair and impartial verdict, I would rule him a 



AND OTHER PUBLIC MEN OF TEXAS 261 

qualified juror and stop all further questions. If any court .saw 
fit to hold such action erroneous it could take the responsibility. 
If there is any precedent that makes such action erroneous, the 
sooner it is overruled, the better it will be for the good name of 
the courts, and for the people. 

If the examination of veniremen on their voir dire were per- 
mitted unrestrained to be carried to such limits as the ) iwyers 
who make a specialty of criminal practice would carry ii, if not 
restrained, the result would be that every jury in a criminal 
case would be composed of either fools or knaves, or a mixture 
of the two, 

A few years ago a court opened on the Canadian side of the 
boundary line on the same Monday that one opened on the United 
States side. Both had an important homicide case to try. 

At the end of the week the Canadian court had tried the homi- 
cide case, and a number of others, and adjourned for the term, 
while in the court on the United States side the jury in the homi- 
cide case had not been completed. 

Except when the character of the panel is unusually poor it 
would be just as safe, and just as promotive of justice, to draw 
twelve names out of twenty-four, shaken up in a hat, if an honest 
verdict is really desired. 

I went on one occasion into a court presided over Hon. E. R. 
Sinks who for 23 years so efficiently and acceptably filled the 
position of judge of the Brenham-Bastrop district. I was repre- 
senting the Western Union Telegraph Company and wanted to 
try, as I always did. In ten years service for that company I 
applied for a continuance but twice, and was forced to do so 
then by delay on the part of the other side, — yet I secured nearly 
60 per cent of verdicts "for defendant." 

On the occasion referred to Judge Sinks said.: "Judge, I have 
no jury except those twelve men who have just been out on a 
murder case." I said : "I never saw one of them before in my 
life, but if they will give me a fair trial I will take them." 

The local counsel could not well afford to repudiate twelve men 
who had been sitting in judgment on the life or liberty of a 
fellow-man, so they went to trial. 

In three hours a fair verdict was rendered, which I promptly 
paid. 

I defended the same character of case in Kerr County which 
had been brought there, though the plaintiff lived in Bexar County, 
because Kerr County had a large German population and the 
son-in-law of the plaintiff was a merchant in Kerrville. 

I was never there before in my life, and knew but one man in 
the county, and knew him very slightly. All the panel were the 
same to me, and I do npt recall striking a single name. The ver- 
dict was for the defendant. 



262 GOVERNORS W HO HAVE BEEN 

The average jury will do right if the law is given it in such 
form by the court as that it can understand it. 

There is too much abstract law put in charges, both civil and 
criminal, and they are too long. Take, for example, a charge on 
assault with intent to murder. The average judge begins and 
defines murder, and before the degrees were abolished by statute, 
defined murder in both degrees, and then defined manslaughter, 
and then copied the statutory causes which will reduce homicide 
to manslaughter, and then went back and told the jury that if 
they believed the act of the defendant had he killed the deceased, 
would have been murder in either degree then his act was assault 
with intent to murder, but if they believed his act would have 
been manslaughter, then the assaulted party not having been 
killed, the act was aggravated assault and battery. 

When the charge is completed and read, the jury are as little 
enlightened as if it had not been given it, and the charge is from 
three to six feet long. 

The court shoilld tell them that if a defendant shoots at or cuts 
another wilfully and intentionally, and when he is in a state of 
mind sufficiently cool to contemplate what he is doing, then he 
has committed an assault on malice, and if he intended to kill 
the party assaulted the act was assault with intent to murder. 
That is all the law necessary unless the evidence requires a charge 
on a lesser grade of assault. If it does, fit the charge to the facts 
without copying the statutory grounds, which as Judge Clark said 
in Guffee vs. The State are purely illustrative, not exclusive. 

Some years ago I was sitting as special judge in a large number 
of cases, in which the local judge was disqualified. 

A criminal case was called in which he was not disqualified. It 
was for assault wjth intent to murder. I sat at the counsel table 
and wrote a charge, while he wrote one on the bench. I charged 
on aggravated assault and battery. He did not. Both charges 
were written with a pen. His covered eight pages, — mine cov- 
ered two 

I handed him mine to examine. He looked at it, and turned it 
over and upside down before beginning to read, as if it were a 
rare curiosity. At last he said: "I don't see why this won't do. 
I'll give it," and he did. The defendant was convicted and no 
assault was made on the charge. 

Referring again to the question of jurors and juries, it is to say 
that which is as trite as it is true, that there is no more important 
duty that can devolve upon any citizen, than to determine under 
oath disputed questions of fact upon which depend not only valu- 
able property rights, but most often the life or liberty of his 
fellow man. No duty so often involves a loss of time and money 
as does jury duty, and what is even a greater burden, jurors are 
often obliged in obedience to their oaths to condemn their fellow 



AND OTHER PUBLIC MEN OF TEXAS 263 

man to humiliation, disgrace, and suffering, and not infrequently 
to death, and they should be presumed to be decent, honest citi- 
zens, as the large majority of them are, and be treated accordingly 
by court and counsel, and the judge who is quick to fine one or 
more of them for being a few minutes late, or for even not coming 
at all, is very apt to exercise his power unjustly. 

I learned a lesson on the subject of fines once that I have 
never forgotten. The incident had escaped my memory for the 
time being when I wrote some pages back that I had never en- 
tered but one fine in eighteen years' service. 

A number of very important criminal cases were ready for trial, 
in all of which one humble citizen, a peddler, was an indis- 
pensable State's witness. He lived only three or four miles from 
town, and had been summoned, but was not present, and had 
sent on excuse. 

His absence entailed great expense on the State, and I entered 
a fine against him nisi. 

He never appeared, because to prevent his appearance some of 
the gang to which the defendants belonged had murdered him 
and buried him in a sand bed near his humble home. 

I later sentenced one, who took no part in the actual murder, 
but was, in a statutory sense, guilty, to prison, and he served his 
sentence. 

Juries are more blamed than praised, and more blamed than 
they should be, and I am glad to set down a few words in their 
defense, and pay them a tribute that is their due. 

INSTANCES OF RARE PROFESSIONAL SKILL. 

Any lawyer should be able to win a case where he has available 
plenty of testimony, and the law applicable to it will sustain a 
recovery, but none but a lawyer of the first order of ability can 
take a few disconnected, and so to speak, incoherent facts, and 
build up honestly a case that will support recovery. 

Judge Waltus H. Gill came before me on one occasion with, in 
effect, a broken lantern and a dead man as the entire basis for re- 
covery. The rest of the evidence was a matter of deduction, and 
construction, and analysis of facts, and the connecting of the 
handling of trains in a yard with the dead man and the lantern. 
Not a single witness had seen the man fall, or had seen him 
killed. 

The opposing counsel were as able as there are in Texas, but 
Judge Gill built up a case that stood assault before the jury and 
all the courts. 

The achievement stands out in my memory as the most skillful 
piece of professional work I ever saw done. 

I was instrumental on one occasion in placing in the hands of 
my friend and neighbor, John W. Parker, of Houston, a personal 



264 GOVERNORS WHO HAVE REEN 

injury action which was handled in such a way as to be on a par 
with the case tried by Judge Gill, and the cases were very similar, 
a dead man and a lantern being the foundation of both. 

Mr. Parker had not a single witness when he announced ready, 
but depended on getting testimony out of the large number of 
witnesses the defendant railroad had present. It was a bold, but 
apparently hopeless venture, but he recovered and collected a 
large verdict. 

To win such professional victories in open honest legal battle 
requires a combination of sound judgment, legal ability, and con- 
summate skill as a trial lawyer. 

I feel that it is worth the space that it will take to show how 
the case last referred, to strikingly confirmed the trnth of the 
scriptural adage, "Cast thy bread upon the waters for thou sha't 
find it aft'^r many days." Eccl. 11-1. 

Years before the case was brought, an humble, uneducated man, 
not more than an ordinarily skillful carpenter, contracted to do 
certain work for me in enla'-ging the capacity of my very humble 
cottage in which I then lived. 

What it should cost me was definitely agreed on. When the job 
was finished it had cost sixty per cent more than the agreed 
price. He frankly admitted he had made a mistake, and I knew 
that legally I owed him nothing. I reasoned, however, that he 
was a poor man, working at the then rate of $2.00 a day, and 
while what I would have to pay was then a very material sum 
to me, T concluded I was better able to do without than he was, 
and I paid him in full, for which he was very grateful. 

Years rolled by,^ — the old carpenter died, but not before his son 
had married and brought his wife to the family home. The son 
was the victim of the railroad accident. When the widow in her 
weeds entered my office to request my assistance to get a settle- 
ment out of the railroad, she opened the conversation by saying: 
"I came to you because my father-in-law often told me of your 
kindness to him." 

The railroad rejected her claim, and as I was on the bench at the 
time I put the matter in the hands of my son, and he associated 
Mr. Parker with him, and the result was as already stated. The 
bread I cast on the waters, though it did not find me, found one 
that is more than "me" in my sight. 

Of course, the case was not tried in my court, because I do not 
recall ever having tried any kind of a case in which my son was 
interested, except where all my action was purely formal or pur- 
suant to agreement of all those interested in the proceeding. I 
declined to appoint him receiver of a large estate, though the 
parties most in interest specially requested his appointment and 
had a bond for $50,000 ready. 



AND OTHER PUBLIC MEN OF TEXAS 265 

I required them to go to another judge, who made the appoint- 
ment. 

"Mankind is unco weak 

And little to be trusted. 
If self the wavering balance shake, 
'Tis rarely right adjusted." 

With me a son is more than "self." 

THE COURT'S RULINGS, AND ATTORNEYS. 

No judge who has served for any considerable length of time 
on the bench can have failed to observe how differently different 
lawyers take the rulings of the court, especially in the matter of 
the admission or rejection of evidence, or that of action on 
motion for new trials. 

Some lawyers manifest neither surprise or displeasure, or act 
as if they felt they had been aggrieved, but courteously reserve 
their exceptions, and proceed with the trial, or if the ruling 
makes further trial unnecessary or impossible, prepare for ap- 
peal. They recognize that the judge is liable to err, and that 
probably he may have ruled correctly, and are just enough to 
accord to him the purpose to do right. 

Other attorneys act as if they felt that the judge had intention- 
ally done them injustice, and in most unpleasant ways manifest 
their displeasure, and cherish the judicial action as a personal 
grievance. 

An impartial and competent bystander, who knew neither of 
two men each representing his respective class, who had wit- 
nessed such an exhibition, would assign each lawyer to his class, 
the first to the class of "lawyers" — the second to the class of mere 
"attorneys" who hold licenses, but who would not be a lawyer if 
he had a ream of licenses. 

I have known capable, worthy lawyers who honestly believed 
judges ruled against them for personal reasons, and to gratify 
some personal grudge or dislike. I believe they are grossly 
mistaken. 

I recall a case in which the Supreme Court said I erred almost 
inexcusably, yet Judge James A. Baker took his exceptions just 
as suavely and courteously as if I had directed a verdict in his 
favor. 

In another case tried by him, in which he ultimately lost, he 
bore himself in the same way. 

In the latter case I held that the fact that though the plaintiff 
was for months disabled by injuries received in a railroad wreck, 
his employers paid him his salary, could not be proved to dimin- 
ish the damages he suffered, as such payment was a matter of 



266 GOVERNORS WHO HAVE BEEK 

grace, with which the railroad had no concern. The Supreme 
Court approved the holdings. 

Most strange to say, the identical question nearly thirty years 
later came before me. I held the same way. Writ of error was 
granted on that point alone, as I recall. The Supreme Court held 
the case for many months, and finally affirmed it, and cited the 
first case, which I had tried, as it appeared in the reports to 
support its holding. 

The two cases are the only two, so far as I know, in which the 
question ever arose, and I know of no similar instance. 

In ninety-nine cases out of a hundred the lawyer who attributes 
a personal motive to the judge is wrong. The duties of a judge 
are so important, and his trust so solemn, that it becomes in- 
vested with. sanctity, and that man is as rare, as he is unworthy, 
who will prostitute it to personal ends. 

Many judges are not learned in the law, but a dishonest one is 
most unusual. 

I have lost repeatedly, — indeed in every case but one — tried 
before my friend, Henry J. Dannenbaum, one of my successors in 
the Sixty-first District Court, and while I believe he erred, yet I 
know he tried to give me a fair trial, because there was no more 
capable or upright judge on the bench in Texas. 

TWO LAWYERS WHO KNEW THE LAW. 

It is sometimes the case that civil actions in which no appeal to 
the emotions can be made, make a lasting impression on the mind 
of a judge. 

Some twelve or fifteen yeai's ago a lawyer of high personal and 
professional standing who is now dead, brought a suit for in- 
junction before me, and it was evident that his petition had been 
prepared with great care, and that he believed in his case. 

Both parties to the action were corporations, and as I recall 
the case involved the question of the distinction between the 
"police power" (a most elastic term) and the right of "eminent 
domain." 

Hon. H. M. Garwood appeared in person for the firm of Baker, 
Botts, Parker & Garwood, and demurred to the petition in such 
way as to present a question decisive of the case. 

He had the right, of course, to open the argument on his de- 
murrer, and he supported his contention by an argument of such 
luminous clearness, and such persuastive reasoning, which though 
brief, so thoroughly convinced the opposing counsel that he had 
no right to relief by the process invoked, that he dismissed his 
case, and never again filed it. 

Both men displayed legal ability, — the one by his masterly argu- 
ment, — the other by his demonstrated capacity to see the truth 
and force of the argument. 



AND OTHER PUBLIC MEN OF TEXAS 267 

If a mere "attorney," as contradistinguished from a "lawyer," 
had represented the plaintiff, he would have beaten the air, and 
vexed the judicial ear for hours, and have appealed, and would 
never have discovered that he had no case to begin with, till he 
received the bill of costs in the Supreme Court. 

I heard through the medium of a friend a few years ago, that 
the Chief Justice of the Supreme Court of the United States was 
heard to say to a friend, with whom he was walking home in the 
afternoon, of one argument day, that "the argument made before 
us today by Mr. Garwood of Texas was the best argument I have 
heard ^ince I have been a member of the Supreme Court." I am 
prepared to believe that statement was made. 

JUDICIAL ABILITY AND WIT. 

On one occasion that most efficient lawyer, able legislator, and 
admirable citizen, Walter Gresham, whose sudden death in the 
very recent past so shocked and grieved a host of friends, was 
replying to an argument made in support of an attack on certain 
of his pleading. 

Hon. Andrew P. McCormick was judge of the court. He said: 
"I have very grave doubt of the sufficiency of your pleading to 
authorize the admission of the evidence you purpose to offer." 

Mr. Gresham said: "My pleading is very broad, and I think 
covers the point," The judge, with a gracious smile and a char- 
acteristic twinkle of his eye, said: "Unfortunately, when things 
get too broad they get 'too thin' and the rule applies to pleadings." 

Mr. Gresham caught instantly the meaning of the judicial bon 
mot and took leave to amend. 

I was a participant in an amusing incident in the Supreme Court 
at Galveston on one occasion when Judge Moore was on the bench. 

There were two cases on the docket involving the same ques- 
tion of law, and the question had never been before the court. 

I was helping, or trying to help an unlicensed amateur real estate 
lawyer, who had furnished me an opinion he had dug up, which 
I found was destructive of his case, because it had been expressly 
disapproved on appeal to the next highest court in the succession 
of courts which function in New York, so I was at sea. 

That admirable gentleman. Major W. B. Botts, then of the firm of 
Botts & Baker, was present. As I recollect he rarely appeared in 
any court, though he was a most excellent lawyer. The discus- 
sion in some way became very informal, and Judge Moore said: 
"Major Botts, what do you think of the question?" Major Botts 
replied: "To be frank with your honor, I am not prepared to 
express an opinion." Judge Moore then said to me: "What do 
you think about it, Mr. Kittrell?" I was more or less a beginner 
in the law, and had not much idea of any kind about the matter, 



268 GOVERNORS WHO HAVE BEEN 

so I said: "I can only say, as my older and abler brother has 
done, that I do not know what to say." 

Judge Moore, with a hearty laugh, said: "Counsel and court 
seem to be in the same fix. We do not know either." 

They found out, however, later, and made the question lumin- 
ously clear. It was the same question which was later determined 
in 53 Texas, 162, and as I recollect, the decision in whatever case 
it was first made, was an expensive one to the railroad company, 
but the justice of the holding cannot be reasonably questioned. 

THE CLOSE OF MY JUDICIAL SERVICE IN HOUSTON. 

There was one incident, or event, connected with my service 
on the bench in Houston, — the memory of which will abide with 
me till my heart throbs for the last time. 

More than a year before my last term expired, I announced my 
purpose not to be a candidate for re-election. 

Ten years to a day from the time I qualified, I administered 
the oath of office to my worthy successor, — Hon. John A. Read, 
and extended him my congratulations, and inducted him into the 
judge's seat. When I had done so one of the oldest and most 
distinguished members of the bar rose and, addressing me, said: 
"I desire to present you, sir, on behalf of the bar of Houston, 
a gift, which you will please consider as constructively present. 
It is a desk rug, chairs, and other appointments necessary to com- 
pletely furnish the law office to which you are about to retire, 
and which has been installed in that office." 

I had no knowledge or intimation of such kindly purpose, and 
did not even know where the office was, as my son had se- 
lected it. 

I found attached to the desk in a permanent way a plate beauti- 
fully engraved, to the effect that the gift had been presented to 
me by the bar of Houston in token of its appreciation of ten 
years' service as Judge of the Sixty-first District. 

As soon as my successor had taken his seat he announced that 
his physician imperatively forbade his serving on the bench 
until the middle of the ensuing October, — a period of about eight 
months. 

A bar meeting was called at once to elect a special judge, at 
which, as I recall, I was not present. One hundred and twenty- 
four out of one hundred and twenty-five votes were cast for me 
over the earnest protest of my son. 

I told him, however, that under such circumstances I did not 
feel that I had the right to refuse such a call to service, and by 
repeated elections every sixty days I held until my successor 
was able to take the bench. 

Its arduous labors proved too much for his strength and he 
sank to an early death, deeply and deservedly mourned by many 
friends. 



AND OTHER PUBLIC MEN OF TEXAS 269 



JUSTICES OF THE PEACE. 

Nearly every lawyer and judge can remember some incident 
concerning some Justice of the Peace which always brings a smile. 

It may be that some of the tales told of those subordinate 
judicial functionaries are apocryphal, but I have personal knowl- 
edge of some incidents which are calculated both to cause amuse- 
ment and to provoke incredulity. 

I had occasion once to pass on the admissibility of an entry 
on the docket of a Justice of the Peace as evidence, and when 
the question had been passed on, I continued to glance through 
the docket. 

I came upon an entry made in due and solemn form, which 
revealed that the Justice and the County Attorney had engaged 
in a fight in the court room, and the Justice determined that the 
majesty of the law should not be violated, without at least an 
appearance of vindication, proceeded in due and regular (?) 
form to swear out a complaint against himself, swear to it before 
himself, plead guilty before himself, and assess a fine of ten 
dollars against himself. 

His sincerity might not have been, indeed could not have been, 
questioned, had he stopped there, but ten days later he entered 
an order reciting that a motion for a new trial had been filed, 
and after due consideration the court was of the opinion that 
the law was with the defendant; therefore, the judgment before 
rendered was ordered set aside and a new trial granted. 

The aft'iant, the defendant, and the judge were combined in the 
person of his honor — the Justice of the Peace. 

I venture to say that the record he made stands an isolation 
of uniqueness, and without precedent in judicial annals, even in 
the records of Justices of the Peace. 

Some years before the Judge of the District Court while on 
his way across the country, met two men on horseback, and one 
was chained to the neck of his horse. The Judge asked the 
off"icer where the man was being taken. The reply was to the 

penitentiary from County. The Judge says : "Why, court 

doesn't open there till tomorrow." The officer said quickly, "But 

(naming the Justice of the Peac^ referred to above), 

sent this man." The Judge directed the prisoner to be sent back, 
and in due form he was sentenced in the District Court. 

Many years later, when I was Judge in the same district, I 
asked the Justice of the Peace if the story was true. He said: 
"Why the fellow plead guilty and I looked at the statute and it 
said the penalty was two years in the penitentiary, and I didn't 
see any use of bothering the District Court with him. so I sent 
him on to Huntsville." 

There is a familiar adage that "Truth is stranger than fiction," 



270 GOVERNORS WHO HAVE BEEN 

and if any reader has any doubt about the truth of the adage, 
if he will look on page 56 of Ex-Governor Frank R. Lubbock's 
most interesting memoirs, he will have all doubt removed. 

Whatever Frank R. Lubbock wrote down may be accepted as 
true. He said he was the foreman of one of two juries, both of 
which returned verdicts in murder cases in Houston about 1838 
or 1839. 

That counsel for the defendants said their execution would be 
judicial murder, but that the Judge, whose name he gives, over- 
ruled all motions and entered a decree that "the prisoners, in 
consequence of the insecurity of the jail, the extreme cold 
weather, and their uncomfortable situation," be hung on the Fri- 
day following, which was done, and the spot where they were 
executed is called "hangman's grove" till this day. 

Such judicial solicitude for the bodily comfort of convicted 
defendants has rarely been manifested, but it may be safely as- 
sumed that the defendants would have preferred to have endured 
a few days of extreme cold, rather than take the chances of land- 
ing where many good people believe the mercury will be found in 
the other end of the thermometer. 

I knew a very kindly old man when he was Justice of the Peace 
at nearly 80 years of age. Another old fellow was a great lawyer 
in the minor courts, and had one form of peroration for all his 
speeches to court or jury, which was reference to his age, and his 
early entrance into the profession of the law. 

He appeared one day before the venerable Justice in defense 
of a negro charged with unlawful gaming. There was no jury, and 
the lawyer concluded a most earnest appeal in these words: 
"I am sixty-four year old and have been a practicing of law 
for 43 year, and I never saw a more innocent man in my life 
than this defendant." 

In a moment the old Justice said: "I see your 64 and go you ten 
better, and he's guilty as a dog, and you know it. Ten dollars." 

The same Justice of the Peace, who sent a man to the penitenti- 
ary, heard a civil case without a jury, and announced to the 
parties that after he had been to dinner, and attended a horse 
race set for 2 o'clock he would render judgment. 

He seemed slow to act and plaintiff's counsel approached him 
about it. He said: "I thought that old gray could run, and I bet 
the defendant the judgment on the race. The old gray come out 
fifty feet behind and you lost." He kept his word, and entered 
judgment for the defendant. 

An attorney who had been Chief Justice of his State went out 
before a Justice of the Peace one day to oblige an old friend. 
The initials of the Ex-Chief Justice were W. P. He argued strenu- 
ously the controlling point of law, and as he did so, counsel for 
defendant smiled a smile that plainly implied, — I have an author- 



AND OTHER PUBLIC MEN OF TEXAS 271 

ity here that will overwhelm him. When the Ex-Chief Justice 
had closed his opening speech, the opposing counsel rose and 
said: "Now, your honor, I will show you how differently the 
gentleman talks now, from what he did when he was Chief 
Justice of the Supreme Court of this State. 

"Here is an identical case, and let me read you his opinion, 
holding exactly to the contrary of which he has tried to make 
you believe is the law. When I have read it I shall say no more." 
He read the opinion, and sat down with a look of triumph on 
his face. 

The Ex-Chief Justice picked up the book and opened it at the 
case and said: "Now, your honor, let's see who is trying to mis- 
lead the court. He has read you an opinion by a man of my 
name, but whose initials are C. J. You have known me thirty 
years and you know my initials are W. P. That's all I have to 
say." The old Justice said: "Yes, I see. You don't fool this 
court. Judgment for the plaintiff." 

The opposing lawyer was too dumbfounded to object. That 
incident was related to me by a most intelligent daughter of the 
Ex-Chief Justice. 

There is a thoroughly authenticated instance in Texas where 
counsel for a prisoner had to ride under whip and spur for fifty 
miles, more or less, to secure a writ of habeas corpus to prevent 
the hanging of the prisoner pursuant to a judgment of a Justice 
of the Peace. 

JUDGE ROBERTS AND THE IRISH BARRISTER. 

A most amusing incident occurred once during the session of 
the Supreme Court at Tyler, where Governor Roberts was pre- 
siding as Chief Justice. 

That charming gentleman, Hon. Thomas B. Greenwood, Associ- 
ate Justice of the Supreme Court of Texas, told me recently that 
he had heard his father, a distinguished lawyer whom I had the 
pleasure of knowing, often relate it. 

There lived at Henderson, Rusk County, before and during the 
War of 1861-1865 a lawyer by the name of Martin Casey. His 
name unmistakably identified his Irish nationality. 

I do not recall ever having seen him, but have been told he 
was a highly educated man, and from the number of times that 
his name appears in the earlier reports, must have enjoyed a 
good practice at the bar. 

After Judge Roberts returned to the Supreme Bench, Mr. Casey 
went to Tyler to argue a case. He had not been in the Supreme 
Court for many years, and been but a short distance from home. 

He felt it to be obligatory upon him to array himself in a garb 
suited for the occasion. Among his purchases of garments was 
a shirt. There were no fashions in shirts before the war, and no 



272 GOVERNORS WHO HAVE BEEN 

white shirts, or very few, during the war, but a new fashioned 
shirt had appeared. It was of the kind generally worn now at 
costume de rigeiir social affairs, or to speak, in plain language, 
worn with a swallow tail coat. It was called the "locust back"^ 
shirt. 

The bosom was solid and stiff, and what may be called the 
placket or opening in the shirt was in the back. The Irish bar- 
rister had never seen a shirt open anywhere else than in the 
front, so he supposed the opening in that shirt was intended to 
go that way, so he put it on with the stiff, solid bosom behind, 
and his back looked like a blackboard. 

He had not been careful as to measurement of the neck, so it 
was several sizes too large. He rose and began to address the 
court, and his Irish blood got up and he soon became vehement 
and gesticulated vigorously. His shirt responded by creeping 
up and rising toward the top of his head. He chewed tobacco 
and expectorated freely and most of the expectoration fell into 
the placket. After awhile his shirt rose so threateningly that the 
Chief Justice said: "Mr. Casey, Mr. Casey, I think your shirt's 
coming over your head, — over your head." The old Judge wanted 
to avoid an embarrassing situation. The threatened disaster 
served to enlighten the eloquent Irishman on the subject of the 
change of fashion in shirts. 

HARDIN HART. 

There was at one time a Judge in North Texas, whom I never 
saw, but have often heard of. He, at times, sat in the District 
Court at Dallas, He was a Republican, and was appointed Judge, 
either by E. J. Davis, or perhaps by military power. While, as I 
infer from what I have heard, he was not much of a lawyer, I 
have been told he was an honest, conscientious old man. I have 
no doubt that many now living knew Plardin Hart, for such was 
his name. 

I assume that in his early days he indulged, as many men did, 
in the diversion of playing the great American game, as I have 
heard he often used on the bench the metaphors of the poker 
table. 

A friend told me once that on one occasion when Judge Hart 
was on the bench in Dallas a well known lawyer, who I believe is 
still living, and who is called by his familiar friends "Bob," had 
a case he professed to be anxious to try. On the opposing side, as 
counsel, was another well-known lawyer, by the name, I think, of 
Sneed, who said he was not ready for trial, and asked "Bob" to 
consent to a continuance, but "Bob" refused. He then appealed 
to the court, but no statutory grounds were presented, and the 
court refused his continuance. 

"Very well," said Mr. Sneed, "I will go to trial." Thereupon 



AND OTHER PUBLIC MEN OF TEXAS 273 

"Bob" expressed a willingness that the case go orer, but Mr. 
Sneed said, "No, you have been horsing for a trial, and you shall 
have it," and then "Bob" appealed to the Judge. 

The old Judge said, " 'Bob,' you bluffed, and bluffed, and 
bluffed, like you had a full hand, but when Sneed crope up behind 
you thar you sot behind two deuces. Now you jest go to trial." 

In one of the large towns of the district, Sherman, 1 believe, 
two men were on trial for murder, committed for the purpose 
of robbery, and they secured about $8,000.00. 

The evidence was largely, if not wholly, circumstantial, and the 
State had put on all its testimony (which was very strong), except 
that of identifying the money. The cashier, or teller, of the bank 
had kept for some reason the serial number of the bills, paid to 
the murdered man, and a lot of money was captured on the per- 
sons of the defendants when they were arrested. The teller, or 
cashier, took the stand and read the numbers of the several bills, 
and the District Attorney would produce a corresponding bill 
from the bundle of captured money. It was deadly evidence, 
and when every bill had been identified, the old Judge, who had 
been watching the proceedings with undivided attention, drew a 
long sigh and said to the District Attorney: "Cowles, you already 
had two par, now you've got a full." 

If any reader of this humble volume does not understand the 
metaphor used by the old Judge, he may be able to find some 
Texas lawyer who practiced in the early days in Texas, for in 
that day the knowledge of poker was part of the legal curriculum. 
I have heard it said that so^iewhere about 1846 a young man was 
being examined for admission to the bar, and he was asked only 
the following questions: "Can you shoot a six-shooter?" "Can 
you swim a horse across a swollen creek?" "Can you play 
poker?" He answered every question in the affirmative and the 
chairman of the examining committee said: "You are qualified 
for a lawyer in Texas and we will so report," and they did. 
That young man became, in after years, one of the ablest lawyers 
of the bar of Texas, and one of the few Texas law writers — Hon. 
John Sayles. 

SAM HOUSTON GRANTS A PARDON. 

A most amusing incident occurred about 1861 which, while it 
did not occur in a court room, had direct relation to court pro- 
cedure. 

Some time before the Civil War a woman was convicted of 
murder in Houston and given six years imprisonment in the 
penitentiary. 

Hon. J, W. Henderson defended her. He was a dark, swarthy 
man and was called by many "Smoky Jim." He was, too, called 
"Governor" Henderson, because he was for awhile Governor of 



274 GOVERNORS WHO HAVE BEEN 

Texas by constitutional succession in some way, but exactly how 
I do not now recall, and it is not necessai'y to the story to know. 

He came to Austin to try to get Governor Houston to pardon 
Mrs. Monroe. He, no doubt, timed his visit to correspond with 
the meeting of the secession convention, which was in session 
upstairs, while Governor Houston's office was downstairs. 

Sam Houston's prejudice (or perhaps a better word is "con- 
viction") against secession was very strong, and his dislike of all 
secessionists intense. 

The Governor received his old friend very cordially, and with 
the deliberation and clear enunciation which characterized his 
speech, said: "Well — Henderson — what — can — I — do — for — -you — • 
my — friend?" 

Whereupon the following conversation occurred: "Governor, 
I want you to pardon Mrs. Monroe." "Why should I pardon her, 
Henderson?" "Oh, she's a woman and she's been there long 
enough." "Well, wasn't she fairly tried?" "Oh, yes, I've no com- 
plaint to make on that score." "What Judge tried her, Hender- 
son?" "Peter W. Gray." "No belter Judge in this State or out of 
it, Henderson." "I agree with you. Governor." "You defended 
her, Henderson?" "Yes, I represented her." "Then it goes 
without saying that she was well defended, Henderson," "I did 
the best I could." "And she was convicted, Henderson." "Yes, 
and given six years." "And she appealed, and the conviction 
was affirmed, Henderson? Am I right?" Henderson had, with 
consummate finesse led the old Governor up to the point where 
he meant to strike a winning blow, and he answered, "Yes, 
Governor, and it is fair to say that the opinion affirming the 
judgment was the ablest ever written by Judge Roberts." 

In an instant the old Governor straightened up in his chair, 
and said with fervor and fire, "Roberts? Roberts? Ovan Milo 
Roberts, that fellow who is presiding over that mob upstairs?" 
"The same, Governor." 

"Then, Henderson, so help me God, I'll pardon the woman. 
No citizen, however humble or lowly, shall be deprived of life 
or liberty by the decree of any such as fellow as that," and he 
pardoned her forthwith. She lived in Houston for many years 
afterwards, and her name appears often in real estate transfers. 

That incident had both its amusing and its serious side. It 
illustrates the ingenuity of a lawyer and his knowledge of human 
nature, but it also forcibly illustrates how high the tide of passion 
and political prejudice had risen in those stormy days. 

Sam Houston and Oran M. Roberts have long since joined "the 
innumerable caravan that is moving on to the endless realms of 
shade," and all men know now, that they were patriots who loved 
their country, and strove for the right, as God gave them to see 
the right, and for their actions in those days both can answer 



AND OTHER PUBLIC MEN OF TEXAS 275 

with a clear conscience in that day of final reckoning when "God 
will sift out the hearts of men before His judgment seat." 

A UNIQUE GROUND FOR DELAY OF A TRIAL. 

When I was on the bench in Trinity County, I at one term of 
the court finished all the important business about Monday of 
the third week, and announced that I should close the court 
about Tuesday. 

There was a lawyer, a resident of the county, who had prac- 
ticed at that bar for 40 years or more, and who, though nearly 
four-score years old, was marvelously preserved, and with all a 
practical joker, but possessed a great fund of shrewdness and 
common sense. 

He urged me not to go home, saying he had a divorce case of 
great importance that for various reasons he could not try before 
Friday. 

As I always held to the view, and do yet, that a judge is a hired 
man of the people, and should consider first the convenience of 
the attorneys who represent the people, rather than his own, 
I stayed. 

The testimony revealed that the defendant was a rather comely 
matron on the sunny side of life who had, dropping into the 
vernacular of the present day, "gone on a strike" and breached 
in part at least the connubial contract. There was no allegation 
or evidence that she was treading the "primrose path of dalli- 
ance," nor that she had barred the door of the home against her 
liege lord, nor had she forsaken the family board, nor compelled 
him to do so, but the rest of the contract, which was a matter 
of conclusive implication, she had violated, and repudiated, and 
persistently continued so to do, to the plaintiff's great depriva- 
tion, disappointment, and discomfort, and mental and physical 
distress. The proof was clear, and the earnest plea of the ill- 
treated plaintiff was granted. 

When the case was over I said to the attorney: "What made 
you hold me here for three days to try a case which has been 
disposed of in ten minutes?" 

He drew up one corner of his mouth, turned his head on one 
side, and winked his eye, and said with great deliberation : "I — 
know — when — to— ^try — a — case. A — heap — depends — on — when — 
some — kinds — of — cases — are — tried. If — I — had — put — that — • 
fellow — on— the — stand — when — you — first — got — here — three — 
weeks — ago — you — wouldn't — have — thought — much — of — his — 
case, — but — I — knowed — that — when — you — had — stayed — in — 
these — piney — woods — three — weeks — you'd — think — he — was — • 
the — crudest — treated — man — you — ever — heerd — of — and — I — 
waited — for — the — right— time." 

The reason given for the delay, while unique, was both ingenious 
and philosophical; as I was obliged to admit. 



276 GOVERNORS WHO HAVE BEEN 

CHAPTER XXXVI. 
MEMORIES OF THE BENCH ON THE CIRCUIT. 

In the Twelfth District, Frank M. Etheridge, then of Fairfield 
and later of Corsicana and now of Dallas, practiced before me, 
and the promise he gave then as a lawyer has been greatly to my 
pleasure abundantly fulfilled. 

He recovered a verdict in a personal injury action which, on 
a very close point, was reversed. 

I said to him one day just before another trial: "Etheridge, 
have you amended your pleading?" "You bet, and I have done 
better than that. I have amended my proof," which he had done, 
of course, in a perfectly legitimate way. He won again, and the 
judgment was affirmed. 

He announced ready for trial one day in a personal injury 
action, whereupon one of the local counsel for the road, with 
great deliberation, and I might say solemnity, rose to move a 
continuance. 

He was what that original genius, Major Phil Claiborne, would 
have called a very "preponderous" kind of a man — one of the 
kind that could invest the taking of a judgment by default on 
a promissory note with more dignity and solemnity than was 
displayed by John Marshall when he rendered the opinion in 
Gibbons vs. Ogden. 

He assured the court of his great anxiety to try, but deeply 
regretted to say that the papers had, in some way, been mislaid, — 
which made trial impossible. 

Etheridge rose just at that juncture, and in that penetrating 
voice which will forever exclude him from operatic honors, said : 
"May it please the court I got tired of riding thirty-five miles across 
these sand hills only to find out, that when I was ready to try 
cases the papers were always out of pocket, so I carried every 
paper in every civil case I have in this court home with me, and 
had copies made and I have them here, and reaching down under 
the table he took up a box holding a half bushel, more or less, and 
taking out a bulky package said: "Here, sir, is a complete and 
accurate copy of every paper in this case." I said: "Go to trial, 
gentlemen." The "lost" papers somehow were soon found. 

From time immemorial lawyers on the circuit have played 
poker. They play most often for diversion, — rarely for gain. 

They played in the sand hills when I was on the bench, but 
in every instance but one that I recall, played for petty stakes, 
and without liquor, or beer, or profanity, or vulgarity. 

One night two elderly lawyers, non-residents, came into my 
room. They were on opposing sides in a case of very consider- 
able magnitude, and each had a package of papers under his arm. 
I said: "See here, I want you gentlemen to be ready to try that 



AND OTHER PUBLIC MEN OF TEXAS 277 



case tomorrow, and if you get to playing poker you will not be 
ready." They said: "Oh, we will play a while then go to work 
on that case." When midnight came they were still playing a 
five-cent limit game. 

Another night a lot of lawyers and some laymen opened a game 
when I had gone to bed. One of the party was a man over 
seventy, and another not much younger. In the course of one 
hand only those two stayed. That game was the only one I ever 
saw on the circuit that was played for more than amusement. 
The two were old friends, and had played together many times 
in days gone by. 

The younger bet $2.50. The older sat leaning against my bed. 
He had the ace of spades and the nine of spades and nine of 
clubs. He says: "I'll stay," and put up his money. He drew 
two cards and caught another ace and another nine. Some who 
read this may know what the draw made his hand. The other 
man drew two cards. The old fellow said: "Bet out." The 
younger bet .$2.50. The old man raised him §5.00. The younger 
said: "May I borrow from somebody? I have no more money 
with me." The old fellow said: "Yes, get all you want." I 
reached up to my vest, which was hanging on the head of my bed, 
and took out a roll containing a hundred dollars, and tossed it to 
the younger man, who was a lawyer, the old man was not, and 
said: "Help yourself. Captain." He called the raise. When the 
show down came, the following colloquy took place across the 
table. The old man said: "What yer got?" "Two pair." "No 
good, I got a full house." "Yes, but my two pair are both tens." 
"Lem'me see 'em." The hand was laid on the table. "All right, 
take the money, but I'm thinkin' you got that last one from under 
your leg." "Now, see here, don't talk that way. You played 
poker with me thirty years ago, and you know I play a square 
game." "Yes, I did play with you thirty years ago, and you'd 
a done it then, and I hain't heerd 'bout yer reformin' nary time 
sence." 

My friend, Tom Ball, was standing by, but preparing to go to 
bed, as neither he nor I took any part in the game, but he re- 
members it, not so much for the reason that two such hands were 
out, and the larger was so badly played, as because I had as much 
as a hundred dollars at one time. I am inclined to think myself 
that the latter fact was the more remarkable of the two. 

I wanted to see the sheriff and an attorney one night, but 
neither could be found. Somebody suggested where they might 
be found. It was growing late, but I went to a private bedroom 
in the hotel, and both men I wanted to see, and the County Attor- 
ney, and the foreman of the grand jury and others, were play- 
ing poker. 

When the time came for the County Attorney to deal he said 



278 GOVERNORS WHO HAVE REEN 



he was obliged tp go home, thirteen miles away, in order to be 
on hand to open Sunday School, of which he was Superintendent, 
next morning, so he did not deal, but laid on the bed and shuf- 
fled a deck of cards. When the deal reached him again he dealt 
out six hands. I saw all five of the other men begin to fumble 
with their chips. The first man who bet, was raised, as were 
the rest, until the bet got to the Superintendent, and he raised 
them all. When the show down came there were marvelous 
hands out, but the sixth hand, the Superintendent's, was the best 
of all of them. It was a petty game, but the aggregate of the 
"pot" was substantial. Frank Etheridge said: "All right, take 
the money, but I have learned a lesson. I play with sinners 
hereafter. No more Sunday School Superintendents for me in a 
poker game." 

There is no mental strain so intense as that brought about by 
the work of a lawyer in trying cases, and it is not surprising 
that so many find relief from it in the diversion of poker. 

THE JUNIORS REAT THEIR SENIOR. 

The firm of which that able lawyer and judge, Hon. Waltus H. 
Gill, is the senior member, brought two suits before me ten years 
or more ago, growing out of the same alleged breach of duty by 
the S. W. T. & T. Company. 

One plaintiff" was a lady, the other her brother-in-law, really 
suing on behalf of his wife. 

The Judge very generously turned over the lady's case to two 
young members of his firm, or at least to two young men who 
were in his off"ice, John C. Townes, Jr., and Hugh Lamar Stone, 
Jr. The former is the son of that able lawyer and Christian 
gentleman, Hon. John C. Townes, at one time Judge of the Austin 
District, later head of the firm of Fisher & Townes of Austin, 
and for many years past, and now, a most eff'icient teacher of 
law in the University of Texas, and to whom the bar of Texas is 
debtor for his most helpful work on pleading, and for perhaps 
other treatises on legal subjects. 

The latter is the son of H. L. Stone, who has been for many 
years a member of the Corsicana bar. Roth were, in a sense, be- 
ginners in the law, and fresh from the University of Texas, and 
were, as has been every graduate of that institution who has ever 
appeared before me, thoroughly prepared to practice law. 

I have had many graduates of that institution before me, and 
I have never yet seen one who, if he was naturally endowed 
with enough mental equipment to justify the hope that he would 
ever be a lawyer, did not "make good" in his profession. 

That fact has given me peculiar pleasure and pride, because as 
far back as 1858, my father, as Chairman of the Committee on 
Education in the Lo\yer House of the Legislature, championed 



AND OTHER PUBLIC MEN OF TEXAS 279 

the cause of a University, and was in 1866 appointed by Governor 
Throckmorton a regent (then called administrator) of that in- 
stitution. 

Hugh Lanvar Stone holds now a very responsible position in 
the legal department of one of the greatest oil companies in the 
United States. 

] have had the experience in the recent past of being most 
artistically "done up" by him, both in the trial and appellate 
courts. I assume Judge Gill thought that the young men could 
present a stronger appeal with a young lady for a client. 

They tried their case first and secured a verdict for $1,500.00. 
On hearing the motion for a new trial I suggested that I thought 
a remittitur of one-half would be proper. 

They plead almost pathetically that I should not require them 
to remit, and evidently had less in mind the money consideration, 
th&ii the fear that Judge Gill might recover a larger verdict than 
they did. 

I told them the case was a hard one on the defendant, for 
though it was legally liable yet it was in an actual sense without 
fault, since its agent at the point called, without warning, aban- 
doned his post and the company's service without notice. The 
very efficient and very suave representative of the defendant, 
John Charles Harris, failed not to set up, so to speak, all the 
equities of the situation. 

Though the plaintiff was a most worthy young lady and a 
neighbor of mine, and I was, as I still am, fond of both young 
men, I was inexorable and required the remittitur, and on appeal 
the court trimmed it $250.00 more, so the judgment finally paid 
was $500.00. 

Judge Gill recovered only $200.00, so the ambition of the two 
"kid" members of the firm was realized. 

When Judge Gill brought in his motion for a new trial he said: 
"Your honor, I have filed my motion for a new trial in the Tele- 
phone Company case. I don't expect you to grant it, because if I 
were in your place I would not do so." 

There has been more folly perpetrated, and more money lost 
through imprudent and unwise urging of motions for new trials 
than in any other way relating to court procedure. 

A few years ago a verdict for something over $5,000.00 was 
rendered against a client of mine, — a corporation. 

I saw that in the last analysis it was a question of fact, and 
advised the managing head of the company to pay the judgment. 
He said, "No," he sometimes played poker and believed in chances, 
so he would chance it. A new trial was granted. The next time 
the "chance" cost the defendant an increase of $6,000.00. 

A very capable lawyer filed a motion for a new trial before me 
in a personal damage suit in which the verdict was $8,000.00. 



280 GOVERNORS WHO HAVE BEEN 

Had the pages been pasted end to end, it would have been ten 
feet long, and every paragraph began "the court erred." 

It seems impossible that I could have erred that many times 
in one case. The motion reminded me of an old fellow I knew 
when I was a boy, and till I became judge. He was a great 
talker, but one day he was introduced by a friend to another 
old man who could outtalk him. 

Disgusted, he went back to the friend who had made the intro- 
duction and said: "That man you introduced me to is the biggest 
liar I ever heard." 

The friend said: "I don't think so. Why do you say so?" 

"He's bound to be. There ain't enough truth in the world for 
all he says to be so." 

It seemed to me there could not possibly be as much error 
extant, as the attorney alleged I committed in one charge. 

My confidence in the attorney, and my knowledge of his ability, 
led me to believe I must have erred, so I granted the motion. 

When I came down from the bench he said: "Dog-gone it, 
what did you grant my motion for?" I said: "Because you 
alleged I had committed forty errors, more or less, and if I had 
committed one-tenth of them you were entitled to a new trial. If 
you were bluffing, I called your hand." 

The verdict next time was $16,000.00, and it was affirmed, so 
a motion most elaborate and specific, which the movant did not 
really want granted, cost his client $8,000.00. 

The best lawyer is the one who knows when to quit, but the 
attorney in that case was, and is, a first-class lawyer. He simply 
played his hand too far, and others have made the same mistake. 



AND OTHER PUBLIC MEN OF TEXAS 281 

CHAPTER XXXVH. 

THE TRIAL COURT AND THE UPPER COURT. 

I have heard judges say that they paid no attention to the 
upper courts, and were indifferent whether their judgments were 
affirmed or not, and have heard them complain at what they 
conceived were erroneous reversals. 

When a judge has done the best he could, he may dismiss the 
case from his mind and refuse to worry, but I am slow to believe 
that there is any judge who does not examine with great interest 
the reports of proceedings of the upper courts. I am sure I did. 
I felt certain at times that the intermediate courts were wrong, 
and I was right, and when that opinion was vindicated I was 
much pleased. 

In an important contested will case I peremptorily instructed 
the jury to find against the will. I do not believe very strongly 
in the "some evidence" or "scintilla of evidence" theory. I felt 
so sure that the will was not made by a man possessed of testa- 
mentary capacity, that I told the jury to so find. 

The Court of Civil Appeals wrote a long opinion, which, when 
boiled down meant the case should have gone to the jury. I, of 
course, deferred in duty bound to that opinion, and on a second 
trial the jury found against the will, and so obviously proper 
was the verdict that no new trial was asked for, though an estate 
of over $60,000.00 was involved, so I was right on the first trial. 

The case of Dorchester vs. Merchants National Bank, 163 S. W., 
p. 5, presented for the first time in Texas the question, whether 
the drawer of a check upon a bank in which the drawer had 
funds sufficient to meet the check, was bound by presentation 
of the check through the Clearing House, when it could have 
been presented a day earlier by the payee, whereas by the delay 
of the Clearing House the bank closed its doors and failed before 
the check reached it. There was no dispute as to the facts. 

I held that the drawer of the check had nothing to do with 
the Clearing House, and was not in privity with it as he had 
no right to avail himself of its regulations in any way; hence was 
not bound by its action or non-action. 

The Court of Civil Appeals said I was clearly wrong. The 
Supreme Court said I rendered a proper judgment, and the Court 
of Civil Appeals erroneously reversed it. I made a most elaborate 
finding of fact and conclusion of law, and my friend, John C. 
Logue, of Andrews, Streetman, Logue & Mobley, who handled 
the case for Dorchester, receiver, with great skill, as he does all 
cases, was kind enough to say that my findings and conclusions 
were the best he ever saw. Evidently the Court of Civil Appeals 
did not agree with him. I am glad the Supreme Court did. 



282 GOVERNORS WHO HAVE BEEN 

If any lawyer desires to take a course in mental athletics he 
can do so by reading the case of Underwood vs. Security, etc., Co., 
207 S. W., 642. He will wonder, as I do, how I ever succeeded 
in being half right in that case. 

The Court of Civil Appeals held I was half right, holding that 
the plaintiff was not entitled to recover on one of two policies, 
but was half wrong when I held she was entitled to recover 
on the other. 

My friends, Judge Streetman and Richard West Franklin, com- 
monly called "Dick," were on opposing sides. Both appealed 
from my holding, but after the Court of Civil Appeals held I was 
half wrong in allowing any recovery, only Judge Streetman was 
left to try to get relief. 

The company's lawyer was in the case, but his associate was 
not in need of his help. He can take care of himself. He did so 
to the extent of one-half, as the Supreme Court held with me as 
to the other half. 

It took a widow eight years to get it decided, whether under 
a printed contract she was entitled to what the contract promised 
her. When Hamlet soliloquized, among the inventory of troubles 
which led him to desire to "shuffle off this mortal coil" v/as "the 
law's delay." Had he lived in this day and time he would not 
have soliloquized, but have "shuffled off" in sheer despair. 

Major H. H. Boone and Captain J. C. Hutcheson of Houston 
often appeared in opposing sides before me, and when they did, 
there was a battle between legal gladiators fought out fairly and 
on the loftiest plane of professional ethics and honor. Neither 
man would urge before a court a legal proposition that he did 
not believe was sound. 

I have sat as judge in many counties in Texas and spent alto- 
gether nearly eighteen years on the trial bench, and I have never 
had before me in any case any two men who knew their cases 
better, nor tried them more skillfully and honorably than did 
Major Boone and Captain Hutcheson. Some of the most interest- 
ing and difficult cases I have ever been called upon to try, were 
cases in which they were counsel, and unlike many lawyers 
they were helpful to the court, and as I was, when on the bench 
of an interior district quite a youthful judge, I needed help. 

The judge, whether young or old, who thinks he does not need 
help from the counsel before him, sadly errs. 

My personal regard for both men was very strong, and they 
knew I was going to give them, as far as lay in my power, a fair 
trial in every case, so in all the years in which they practiced 
before me not a single note of unpleasantness ever marred our 
intercourse. 

Both men had one quality, or gift, or capacity, — I might almost 
say virtue, which is a most commendable one for any lawyer to 



AND OTHER PUBLIC MEN OF TEXAS 283 

possess, — that is, they could stand defeat in legal battle without 
whining or complaining, and they never quarreled with the judge 
if he gave a new trial. They appeared on the same side once 
before me in a personal injury case and secured a verdict for 
$30,000.00. It was manifestly against the weight of the evidence, 
and I set it aside, as did every judge. State and Federal, before 
which any case growing out of the same wreck was tried. 

When court was over some friend asked Major Boone, in my 
presence, what kind of luck he had during the term. He replied: 
"First rate, I got a verdict for $30,000.00," and laughingly added, 
"but Norman here set it aside," but not a word of even implied 
criticism or complaint did he utter. 

I have heard of the adage that the losing lawyer has three 
remedies: "to get a new trial, if he can; if he fails, then to appeal, 
and next get drunk and adjourn to the tavern and cuss the 
judge." It has seemed to me at times that some lawyers had the 
idea that the remedies were cumulative. 

As I have said before, Major Boone's sons have proved worthy 
of their ancestry, and Captain Hutchesori's have done likewise. 
If there is one man who has better opportunity to determine the 
ability of lawyers, it is the trial judge. Therefore, I feel that I 
am prepared to write advisedly when I say that J. C. Hutcheson, 
Jr., who practiced before me for nearly eleven years, appearing 
in nearly every character of case, and who was appointed Judge 
of the United States District Court for the Southern District of 
Texas before he was thirty-nine years of age, has, in my judg- 
ment, no superior as a lawyer on the Federal Bench in Texas, 
and very few, if any, outside of it. 

His younger half-brother is a member of the firm of Baker, 
Botts, Parker & Garwood, and long since "arrived" as a most 
capable lawyer. He arrived, too, as a soldier almost as soon as 
his feet touched the soil of France. 

He enlisted, as I have heard, as a private in the artillery branch 
of the regular army. 

As soon as he reached the front, and before he was given time 
to sleep or rest, he was assigned to a gun, and he stood by it and 
kept it in action for fourteen consecutive hours. 

His father had seen service on the fighting front more than 
fifty years before, and stood at the post of duty till valor could 
no more avail; and on a foreign soil, with his mother and wife 
and little ones 4,000 miles away, the son proved the truth of the 
adage, which is as true as it is old: "Blood will tell." 

LAW LICENSEES WHO MADE GOOD. 

I recall four men whose law licenses I signed, all of whom have 
"made good" as lawyers, — a fact which has given me much 



284 GOVERNORS WHO HAVE BEEN 

pleasure: Thos. H. Ball, \V. L, Dean, S. W. Dean and James 
E. Webb. 

The three latter were all boys, from the post oaks of Madison 
County, while T, H. Ball was born and raised in Huntsville. 

The Dean brothers came off of a small farm among the "Shin- 
oaks" in the northeast part of Madison County. 

The younger brother, S. W. Dean, resigned from the bench of 
the Twelfth District after several years of most efficient service. 
W. L. Dean could have had the same position at any time, but 
he preferred to practice at the bar. He was for four years 
Senator from his district, and his name is associated with as 
much, perhaps more, important legislation than is that of any 
Senator who served in the Thirty-fifth and Thirty-sixth Legis- 
latures. I know of no man at the bar to whom I would more 
readily commit important litigation on either the civil or criminal 
docket than W. L. Dean, because he is a lawyer of the first class. 

James E. Webb went to San Antonio in 1889 with a law license, 
and but little else except a high sense of honor, native ability, 
and untiring industry. 

With such equipment he rose to the front rank in the exception- 
ally able bar of that city. 

He was a gentleman from the crown of his head to the soles 
of his feet, and practiced his profession in accordance with the 
most exacting standards of professional ethics, and personal 
honor. His tragic death in the burning of the Country Club at 
San Antonio a few years ago deprived the bar of a lawyer of the 
first rank, and a valuable citizen, and carried sorrow to many 
hearts, and to none greater than to my own. 

It gratifies me very much to know that his son and namesake, 
who bears a striking resemblance to his father, gives promise 
to prove a worthy successor to his knightly sire. 

I have already dealt with the name of my valued friend, T. 
H. Ball. 



AND OTHER PUBLIC MEN OF TEXAS 285 

CHAPTER XXXVni. 
THE STATE AND THE DEFENDANT. 

My service on the bench led me to the conclusion — which the 
observation of later years has strengthened — that the widespread 
conception of the function of the District Attorney and the 
measure of his duty which aforetime prevailed, and in the remote 
districts prevails, yet, it is to be feared to a harmful extent, is 
wholly erroneous. 

It was that he was charged with but one duty, and that was 
to get convictions, and that it was not his duty to see that any 
witnesses were summoned who were not favorable to conviction. 

The conception that all witnesses should be summoned and put 
on the stand — whom he believed to be credible — it matters not 
whether their testimony was favorable to the prosecution or not — 
never seemed to dawn on the mind of the average District 
Attorney. 

Under the iniquitous fee system of paying District Attorneys, 
which has happily been cast into the junk heap, as it should 
have been forty years ago, a mercenary man, not possessed of 
moral principle, could become a menace to the liberty of the 
citizen. 

I recall distinctly the first witness I put on the stand in a crim- 
inal case in the largest county in my district, when I was District 
Attorney, an office I held for about a year. His first statement 
was, "I done come here to testify fur de State — I ain't no witness 
fur de 'fendant." When I said to him: "I want you to understand 
you are here to tell the truth, whether it helps the State or the 
defendant," he was astounded as were the members of the 
bar sitting by, and the counsel for the defendant. 

It is as much the duty of the District Attorney to see that the 
defendant gets a fair trial as it is of the Judge. Any District 
Attorney who keeps back, fails to disclose, or excludes any evi- 
dence favorable to the defendant of which he knows and which 
is available, does that which he has no right to do, and which 
proves him unworthy to hold his office. 

A few years ago the editor of one of the leading law journals 
of the United States, went for one or more successive summers 
to England, and studied at first hand, the methods of procedure 
in the criminal courts of that country. 

He attended the trial of cases in both the nisi priiis and appel- 
late courts, and upon his return wrote most interestingly con- 
cerning what he saw and heard. He said that during the trial 
of an important criminal case the Queen's Counsel, an officer 
whose function, as I understand, corresponds to those of the 
District Attorney in the United States, leaned over to the counsel 
for the prisoner and speaking sotto voce, said: "There is a point 



286 GOVERNORS WHO HAVE BEEN 

very favorable to the defendant which you seem to have over- 
loolced." 

If the fate of a defendant in some Texas courts depended on 
the County Attorney, or District Attorney, suggesting to his counsel 
a point in his favor, he would be doomed without hope. 

Of course the erroneous and harmful conception of the function 
of prosecuting officers which I criticize, is not universal, but 
hundreds of lawyers will bear me witness that it exists, but 
fortunately for the administration of justice, to a far less extent, 
than it once did. 

The writer above referred to attended a session of the High 
Court of Appeals in London, over which the Lord Chief Justice 
presided. That great judicial functionary receives a salary 
nearly four times as great as that paid the Chief Justice of the 
Supreme Court of the United tates. The appellant had been 
convicted of murder. In the course of the argument the counsel 
for appellant referred to the alleged unfairness of the identi- 
fication of the defendant. 

The Lord Chief Justice said: "If there has been anything un- 
fair in the matter of identification, we will not hesitate to quash 
the conviction." It seems that there is no reversals and remands 
over there, but they "quash" a conviction and that ends the case. 
Either the counsel for appellant or the Queen's Counsel stated 
that there was in the Temple of the Court, or accessible in the 
city, an intelligent witness who testified on the trial. The Lord 
High Justice said: "Bring him in at once — we will hear him." 
He was brought in and testified. 

That proceeding would be as impossible under the laws of 
Texas as it would be to try a defendant in his absence from the 
State. There is a case reported in Texas in which the defendant 
was convicted of the theft of a colt. He insisted the colt was his 
property and was raised by him. Obviously, it was a case of 
mistaken identity. He was convicted and appealed. Pending 
the appeal the colt, alleged to have been stolen, was found, or 
returned to the premises of the owner. Afi'idavits were at once 
prepared, showing that a mistake had been made, and an entirely 
innocent man had been convicted, but the Court of Appeals would 
not consider them. They were not pierced by a pink tape, and 
fastened with a seal, and approved by a judge; in other words, 
were not part of the "record." The only way out of the judicial 
tragedy was to find some kind of error in the record and reverse 
the case. If the record had been absolutely flawless, the con- 
viction of a perfectly innocent citizen would have been affirmed — 
because of lack of some hoary precedent or a statute covering 
such a case. 

It is not meant by what is said to criticize the court in any 
degree. It did all in its power under the law. I have never had 



AND OTHER PUBLIC MEN OF TEXAS 287 



jiny great measure of respect for any kind of precedent which 
conflicted with my ideas of justice, and had I been on the court, 
and my views could have prevailed, I would, when the affidavits 
were presented, have not only annulled the conviction, but have 
ordered the indictment burnt, the decree expunged from the 
record, and every vestige of testimony of the miscarriage of 
justice destroyed. 

There was no statute or precedent for such action, but I know 
of no prohibitive statute, hence as my old friend. Governor Lub- 
bock, said about registering warrants when no law authorized it, 
I would have "made a law of my own." 

The District Attorneys who served on my court gave me but 
little trouble in the way of such procedure, as I have criticized. 

They were Ben Campbell, later the very efficient and progres- 
sive Mayor of Houston, and B. D. Dashiell. The mind of the former 
was so constituted that he was predisposed to believe in the guilt 
of every defendant, but he prosecuted with a fairness equalled 
to his vigor, which is to say with all possible fairness, and the 
same is true of the latter. In a certain homicide case in which 
the defendant was distantly related to me, but within a prohibited 
degree, the immediate predecessor of Mr. Campbell had insisted 
on a conviction^ but the jury disagreed. 

I did not go even into the court house while the defendant was 
on trial, but I heard that Mr. Campbell refused to ask a con- 
viction. When he met me later he said: "I would not ask any 
jury to convict that old man, because he was justified. He had 
to kill to save his own life." 

I did not ask him for the reason for his action, but I knew 
that he would have done just what the defendant did, had there 
been forty men instead o^ ten preparing to assault him, 

I recall a trial for homicide before me of a handsome, stylishly 
dressed "Octoroon," charged with killing her husband. 

B. D. Dashiell prosecuted, and my Republican friend, Lock 
McDaniel, in the recent past United States District Attorney for 
the Southern District of Texas, as fair and square a man as ever 
lived, defended. It was a battle in the open, and I never heard 
two abler speeches. Rapier struck fire from rapier, but the 
cham_pion of the defendant won, as he should have done. 

Referring again to the English methods of procedure in crim- 
inal cases, the editor referred to said that no representative of 
the pleas of the crown dared to make any appeal to the emotions 
of the jury. If he did he was fined for contempt of court. I 
venture to say that a thousand lawyers in Texas can recall when 
they have known a District Attorney to open his case with a bare 
outline of the evidence, and in his closing speech not only appeal 
to the emotions of the jury, but assail the defendant in bitter 
terms. 



288 GOVERNORS WHO HAVE BEEN 



Whenever that is done, the judge should set aside the verdict 
as soon as it is returned. 

Just before I left the bench, a civil case was being tried before 
me, in which all the plaintiffs were not only ladies and gentle- 
men of moral worth and high social position, but were my 
esteemed personal friends, as were their counsel, one of whom 
was pro forma plaintiff. 

The defendant was a negro. The subject of the litigation was 
some city lots or a plot of city suburban land. 

Just as the defendant was about to leave the witness stand, one 
of the counsel for plaintiff, a most worthy man, a capable man 
and my friend, said to the defendant: "Didn't you come to this 
city as a Federal soldier fifty years ago, or about that time?" 
I said: "That question is improper and should not have been 
asked, and if a verdict is returned for plaintiff, I will set it aside. 
When or how the defendant came here, or from where, has noth- 
ing to do with this case. The only question to be determined 
here is, did, or did not, the ancestor of plaintiffs execute and 
deliver to defendant a deed to the land sued for?" 

The jury found he did. I do not recall ever having seen a 
negro in a civil suit lose before a jury of white men when he 
ought to have won, and I have tried many such cases. 

I do not mean to be understood as including Harris County in 
my comments on some District Attorneys, for while I have no 
desire to appear in the criminal court, and rarely do, I have 
been at times virtually obliged to do so. I did so while Hon. 
John H. Crooker was District Attorney, and have had occasion 
to have professional intercourse with his successor, Hon. E. T. 
Branch, and have found always that the office was conducted in 
accordance with what I consider the proper conception of its 
functions. 

There is an investigator of facts attached to it, and he is sent 
out, not to work up a case for the State, but to get at the bot- 
tom facts. 

In the recent past, to oblige a brother lawyer who had never 
had any experience in criminal practice, I appeared for a negro 
woman, a descendant of an old family servant of the brother 
lawyer. 

The investigator came to my office and I had an eye-witness 
of the killing detail her testimony, and had my stenographer 
take it down. Before she began, the investigator of facts said: "I 
will read you, Judge, what I have." I said: "No, let this woman 
make her statement first." When she had finished he said: "That 
is just about what I have found out." I presented all the evidence 
to Judge Crooker and he dismissed the case. 

In another case, with which I had no connection, a young man 
plead guilty to the felony theft of railroad brass. He had a wife 



AND OTHER PUBLIC MEN OF TEXAS 289 

and two children. It was before jobs were so plentiful and wages 
so high. He worked when work was obtainable, and his hands 
were hard from honest toil, but when he could get no job and 
his wife and children were cold and hungry, he committed a 
legal crime. 

I said to Judge Crooker: "That is a case for a suspended sen- 
tence." He said: "No, I will dismiss it," and he did and he 
was right. "Blessed are the merciful, for they shall obtain 
mercy." I consider Harris County fortunate in the possession 
of the force of officers who represent the State in the criminal 
court. The Assistant District Attorney, J. V. Lea, was District 
Attorney in the interior, and also District Attorney in the Criminal 
District Court of Galveston and Harris counties. He is absolutely 
fair. He has represented the State, and appeared in civil cases 
before me, and we have been friends from our boyhood days, 
and I know of no man, barring none, who can sift the wheat out 
of the chaff in a mass of testimony, and put it before the jury, 
and apply the law to it, with more simplicity, clearness and 
power. 



290 GOVERNORS WHO HAVE BEEN 



CHAPTER XXXIX. 
LEGAL VICTORIES. 

There have been some remarkable legal victories in civil cases 
won in Texas. That achieved by Colonel George Mason by his 
remarkable, indeed marvelous argument of seven hours before a 
jury, in which, without a note or a memorandum of any kind, 
he sifted out, analyzed and presented to a jury the salient and 
controlling facts in a mass of testimony which it had taken 
three weeks to take, has rarely been surpassed. 

The next one to occur to my mind is that won in the case of 
Dexter G. Hitchcock vs. The City of Galveston. 

That chivalrous gentleman, gallant soldier, and splendidly 
equipped lawyer. Major F. Charles Hume, filed the petition in 
that case in the Federal Court when he was in his thirty-second 
year, though his client believed his attorney was forty-five, as 
he told me himself. The judge who first heard the case on de- 
murrers and exceptions and who tried it on the facts, afterwards 
became a membei- of the Supreme Court of the United States. 

Hon. William P. Ballinger, Hon. George Flournoy and Hon. 
George Mason, three as able lawyers as were then in Texas, repre- 
sented the City. 

On the trial before a jury, Hon. A. H. Willie appeared in the 
case. On his return from Congress he had been chosen City 
Attorney of Galveston and took Colonel Mason's place. 

The demurrers and exceptions of the City were sustained. 
Major Hume had the courage to stand by his pleading. 

His necessarily lengthy petition was written in his most peculiar 
but legible handwriting, and he told me that the preparation of 
the drawings showing the streets, blocks and sidewalks which his 
client undertook to work upon cost his client $800.00. They 
were used as exhibits to the petition. It was more than three 
years before the case was reached on the docket of the Supreme 
Court of the United States. He argued the appeal in person. 
While Judge Ballinger and Colonel Flournoy argued the case of 
the City. 

The court divided four to three, reversed the Circuit Court. On 
the trial before a jury. Major Hume was first obliged to meet the 
objection that his client was not in fact a citizen of Illinois, as 
he alleged, but of Texas. He won on that issue. On the facts 
he secured a verdict for $112,000.00, and on passing on the 
motion for a new trial, the Judge said had the verdict been 
$200,000.00, he would not have disturbed it. 

Though no appeal was taken, it required three years more to 
collect the judgment, but it was collected, principal and interest, 
"to the uttermost farthing." 



AND OTHER PUBLIC MEN OF TEXAS 291 

If any lawyer thirty-two years of age in Texas, or anywhere 
else, has in these modern days won such a legal victory against 
such odds, the fact has never come to my knowledge. 

The third notable legal victory which recurs to my mind was 
won by a man whom I doubt if one man out of five of the bar 
of Texas ever heard of, much less saw. 

If the attics in the homes of a generation or two back were 
searched, they will reveal dust-covered copies of a magazine, 
entitled "Godey's Ladies' Book, Sarah Josepha Hale, Editress." 
That lady, I have been advised, was the mother of William G. 
Hale, the lawyer I refer to. 

He practiced prior to the Civil War in the Corpus Christi section 
of the State, as I now recall. 

I have seen him and bowed to him on the street, but do not 
claim to have known him. 

He was, I should say, not over five feet six or seven inches in 
height, and weighed not exceeding 140 pounds. He was always 
plainly, indeed often shabbily, dressed. He had a head that was 
very long through from front to back, and setting far back on 
it, wore generally a narrow-brimmed boy's hat, and both pockets 
of his coat were filled with "Dick Dead-Eye" and "Wild Bill" 
novels. 

Like many of the great lawyers, he imbibed stimulants very 
freely, but the eff'ects never reached above his neck. 

If I am not mistaken, the first equity case in the way of a re- 
ceivership proceedings ever filed in the Federal Court at Galveston 
was filed about 1867 or 1868. 

It was entitled N. A. Cowdrey vs. G. H. & H. R. R., or perhaps 
against certain bondholders or stockholders, or both. 

Hon. John C. Watrous, who some may recall, Sam Houston 
endeavored strenuously to have impeached, was presiding judge 
of the court,, and had been prior to the war. 

He was, I have been advised, a very able man. 

Mr. Hale represented the receiver, while Judge Ballinger and 
that distinguished and very able lawyer, Jeremiah S. Black of 
Pennsylvania, represented the defendants. 

A member of the bar of Galveston told me many years ago 
that he heard Mr. Hale's argument in 1870. 

He said while the other side were arguing the case, Mr. Hale 
sat in a large chair in almost a recumbent position, holding a 
newspaper, and apparently paying not the slightest attention to 
the argument of the great lawyers. 

When his turn came to speak, he rose and beckoned to a negro 
in the back part of the court room, and the negro brought him a 
wicker basket, which he opened and took out, first, a neatly 
folded napkin, next, a silver flask, the screwed-on top of which 
constituted a cup. 



292 GOVERNORS WHO HAVE BEEN 

He poured out a stiff drink of brandy, drank it, wiped his lips 
with the napkin, folded it neatly and replaced it and the flask 
in the basket, and proceeded to argue the case. 

The result was that he, to use my informant's language, "wiped 
the opposition off the face of the earth," and left them without 
even a hope on appeal, as I recall the facts. Many years later, I 
mentioned the remarkable case to a friend, a well known lawyer, 
and he told me that when Judge Black got home, he said to a 
friend there : "I had never been to Texas, and when I was offered 
a fee of $10,000.00 to go there, I decided to go, though the fee 
was no greater than I had often received. I had been Chief 
Justice of the Supreme Court of Pennsylvania, and Attorney 
General of the United Stales, and I believed I would be able 
to take care of myself against any lawyer I would likely meet in 
Texas, — but I found down there a little fellow by the name of 
Hale, about five feet high, and I have no desire to return to try 
any other case." 

A lawyer who practiced for many years in Galveston told me 
that Mr. Hale was lying asleep on a table one day in his (my in- 
formant's) office in such condition that sleep was most necessary. 
My informant was troubled over a question of law and could find 
no authority whereby he could answer it. He woke Mr. Hale up. 
He j^awned and rubbed his eyes and said, "What do you want?" 
The lawyer stated the point on which he was seeking light, and 
said he wanted an authority. Mr. Hale said: "Look in volume so 
and so on page so and so and you will find the case of (giving the 
style), which is the case you need," and at once dropped back 
to sleep. The lawyer got the volume and the case was directly 
in point and supplied just what he was looking for, 

William G. Hale was a walking encyclopedia oi legal knowledge. 
Yet his reputation as a lawyer was far less extensive than that 
of many who were not even approximately his equal. In the 
scope of his legal learning — and his ability to utilize and employ 
all he had ever learned in the preparation, trial and argument of 
cases, it is doubtful if he ever had an equal at the bar of Texas. 

It was more than forty years ago that after one conviction, 
with, I believe, the death penalty assessed, the late David B. 
Culberson and the late W. L. Crawford secured the acquittal of 
Rothschild for the alleged murder of "Diamond Bessie." It was 
a great triumph of skill and legal knowledge. 

LEGAL VICTORIES. 

The latest legal victory of more than usual magnitude of which 
I have heard was that won by F. M. Etheridge of Dallas in the 
matter of the will of Peter McClelland, deceased. The State 
courts had decided in several cases, before Etheridge's employ- 
ment, that the codicil repealed the gift of the estate made by 



AND OTHER PUBLIC MEN OF TEXAS 293 



the testator to Peter McClelland, Jr., his only child. Etheridge 
filed a bill in the Federal Court for a construction of the will, 
asserting that the prior decisions were obiter dicta and indefens- 
ible, and won out on that proposition. McClelland vs. Rose, 208 
Federal, 503. The bill was filed against the trustees and three 
members of the class designated by the testator as "my heirs ft 
law" — in other words, tiie collateral kin. After final decree in 
favor of Peter, Jr., a number of the collateral kin filed a bill in 
the State court for a retrial of the case. Etheridge filed a supple- 
mental bill in his equity suit in the Federal court, asserting 
that the original action was a class suit and that all members 
of the class, whether actually present or not, were concluded 
by the decree, and an injunction was sought against the prose- 
cution of the case in the State court. The supplemental bill was 
dismissed and on appeal the United States Circuit Court of Ap- 
peals held that the suit was a class suit and that all members of 
the class designated by the testator as "my heirs at law" were 
concluded. McClelland vs. Rose, 247 Federal, 721. The decree, 
therefore, finally removed all claim of the testator's collateral 
kin and vested the entire beneficial interest in Peter, Jr., despite 
the fact that the State courts had decided that he had no interest 
and never would have any interest in the estate. 

The Hunt case will in the Federal court at Los Angeles in- 
volved the purely legal question of whether paragraph 14 of the 
will created a valid, charitable trust, and it involved a million 
dollars. In that case Etheridge made, before Judge Olin Wellborn, 
a legal argument of five hours, wholly without aids to memory, 
in maintaining his position that the attempted charitable trust 
was invalid. Of that argument the Los Angeles Times of July 
12, 1912, said: 

"The argument of the demurrer to the complaint in equity 
filed in the United States District Court involving the interpre- 
tation of the will of the late John W. Hunt closed before Judge 
Wellborn in the United States District Court yesterday. After a 
hearing covering two days, the court took the matter under 
advisement and briefs will be furnished. 

"The attorneys were Francis Marion Etheridge, of Dallas, 
Texas; Hon. Charles M. Cooper, of Jacksonville, Fla., arid Bradner 
W. Lee of this city. Etheridge appeared for the complainant and 
the latter two attorneys for the defendants. The arguments of 
Messrs. Cooper and Etheridge have, perhaps, never been equalled 
in a local court, for their eloquence and judicial learning, that 
of Etheridge being especially brilliant. His diction and knowl- 
edge of the law on the subject of the creation of trusts in wills, 
running all the way from the earliest days of English law down 
to the present time, quoted by the Dallas man without reference 



294 GOVERNORS WHO HAVE BEEN 

to any book, were the marvel of all who heard it. The effort of 
his opponent, Cooper, was but little less remarkable." 

Whilst the cause was under advisement a satisfactory settlement 
was made. 



AND OTHER PUBLIC MEN OF TEXAS 295 

CHAPTER XL. 
THE COURT, THE BAR, AND THE PEOPLE. 

I heard both Judge Roberts and Judge Brown say that the Dis- 
trict Judge is the most important officer in the State Government, 
and the truth of that statement cannot successfully be denied. 

The office is not only one of great dignity, at least should be 
so considered, but of extensive jurisdiction, and the Judge is 
vested with great power, and if he sees fit, he can abuse that power 
grossly, without his action being subject to revision or restraint, 
by any tribunal. 

This being true, the imperative obligation rests upon him not 
to abuse it, but to constantly guard against even the possibility 
of such abuse. 

The office of District Judge is one far more difficult to fill effi- 
ciently than is that of Judge of the higher courts, because the 
judges of the latter courts have large libraries at their command,— ^ 
have ample time to examine every question, and the very great 
assistance afforded by the opportunity for consultation with 
other judges. 

The District Judge, on the other hand, is compelled to decide, as 
has been said, in homely but expressive phraseology, "right off 
the bat," with no time to examine authorities or consult with 
counsel not interested in the case, or to get help from any source, 
and under such circumstances nothing but a correct knowledge 
of fundamental principles can save him from manifold errors. 

If I were asked what in my judgment is the most desirable, — 
yea, essential, qualification (next to integrity) for a District 
Judge, I would unhesitatingly answer: "That he should be a 
gentlemen." 

A gentleman is one who never fails to consider first the feelings 
and comfort of others, and who never subordinates them to his 
own. 

It is the duty of every Judge to extend to the bar the same 
measure of courtesy and consideration that he expects it to ex- 
tend to him. The bar owes no Judge any more courtesy or con- 
sideration than he owes to it. 

I tried as trial judge, before God, to act upon that principle, 
and be guided by that standard. 

My experience has been that the vast majority of lawyers (as 
distinguished from "shysters") are gentlemen. I have never 
had reason to believe that any lawyer ever attempted to mislead 
or deceive me about any matter before my court, and I have 
accepted their simple word in matters of gravest moment. 

There is no tyrant at once so petty, so offensive, and so con- 
temptible as a judicial tryant; because his is the tyranny of cow- 
ardice. He takes advantage of his exemption from being called 



296 GOVERNORS WHO HAVE BEEN 

to judicial or personal account, to tyrannize over gentlemen who 
have no defense against such tyranny. 

No Judge has the moral right to fix a code of rules to govern 
the conduct of his court, and require every lawyer to conform 
to them under penalty. 

A great Judge of the Supreme Court of the United States once 
said that "No court should be enslaved by its own rules," and no 
Judge should make a procrustean bed of rules and demand that 
every lawyer practicing before him shall adjust himself to it. 

The Judge who has his pen in hand ready to enter a fine 
against some attorney, or litigant, or witness, or juror, is, nine 
cases out of ten, a man who is unable to demonstrate his intel- 
lectual or professional fitness for the judgship. 

I served on the trial bench nearly 18 years, and with the ex- 
ception of one witness who contemptuously flouted the subpoena 
from a grand jury, I never entered a fine against any juror, liti- 
gant, witness or attorney. 

I sent an old neighbor to jail for two hours one day for, in the 
face of the court, threatening a witness on the stand, and later 
assaulting him in the courthouse. 

I was asked by an attorney once how I could possibly get jurors 
if I assessed no fines when they failed to appear. The answer I 
gave him expressed my views and reflected my action for eigh- 
teen years. It was, — "Nine jurors out of ten are good citizens 
and respect the courts of the country. They are willing to obey 
the orders of the court and perform the duties required of them. 
Many of them live in the country, often away from postofTices 
or telephones, and when they are unable to come, have no means 
of sending their excuses. 

Their families may be sick, or the creeks be up, or they have 
made, before they were served with notice, business engagements 
which if they fail to keep they will suff'er financial loss. Their 
crops may be in the grass, or their fences washed away. A day 
out of the crop of a "one-horse farmer" may mean loss he can- 
not afford. A week lost may mean financial disaster. Under any 
of the circumstances named they ought not to be expected or 
be compelled to come and serve as jurors. Furthermore, they 
ought not to come. Their first duty is to their families." It 
may be said they can always invent an excuse. Very well, let 
them do so, — I never swore a panel of veniremen to tell the 
truth as to their excuses. I was compelled to test their qualifica- 
tions in that way, but I recall no statute requiring a man to pre- 
sent excuse under oath, thought there may be such statute. 

I told the panel that they were not under oath, because a man 
that will lie when not under oath will lie when he is, and a man 
that will lie or equivocate to escape jury service is not fit for a 
juror, and his absence is a good riddance. 



AND OTHER PUBLIC MEN OF TEXAS 297 

I found that before the week was up every venireman sum- 
moned for the week, but not present, sent some good excuse for 
his absence. If the excuse was true, he ought not to have come. 
If it was not true, an unworthy and unreliable man was kept out 
of the jury box. 

Many good citizens stand in terror of the courts of their 
country. A young German, who I am sure was an honest fellow, 
told me in my court that he wanted to go home because he was 
afraid his wife would not live until he returned. Tears were in 
his eyes, and his voice was tremulous. I asked him why he came? 
His reply was, — "I was afraid not to come." 

A plain, humble, but worthy citizen had left what he feared 
was a dying wife, lest, if he was not present in court, a fine 
would be assessed against him he could not afford to pay. No 
citizen should stand in such fear of any court of his country. I 
said, "Go home at once, and never do you leave your sick wife to 
come to any court." He expressed profuse thanks and went at 
once. 

The next applicants for release were two plainly, but neatly, 
dressed farmers. I did not know who they were, and do not 
know yet. They said, "We are entirely willing to serve, your 
Honor, but we are strawberry farmers, and it has been raining 
for two weeks. This week it is dry, and unless we clean our 
crops they will be lost." I said, — "Go home at once. You can 
serve some other time. I will find some others to take your 
places." 

No Judge has the moral right to arbitrarily fix certain days on 
which, and no other, he will hear certain cases, regardless of the 
convenience of attorneys or litigants. 

I have often sat in the noon hour, or hours, hearing injunction, 
or divorce cases, or motions. In every city there are many work- 
ing women who have married unwisely, and in consequence seek 
divorces. If they leave their work during work hours their 
wages are docked. For that reason I sat often at noon, and often 
after 6 o'clock, to hear such cases when requested. I did not 
do so as a matter of policy, but as a matter at once of principle, 
duty and courtesy. 

I was as scrupulously careful to do so, after I had a year in 
advance announced my determination not to be a candidate, as I 
was when I expected to be a candidate for re-election. 

A Judge is essentially a servant of the people. They pay him 
to discharge certain duties, and he is under the moral obligation 
to be accessible to the attorneys who represent the people, espe- 
cially when statements of facts and bills of exception need to be 
acted on. It is his duty to consider the convenience of the bar, 
rather than of his owr;. 



298 GOVERNORS WHO HAVE BEEN 

I have heard of Judges who seemingly delight in lecturing law- 
yers or some prominent man from the bench. 

Such exhibition of judicial discourtesy and "assininity" appeals 
to the groundlings and tickles the hoi polloi, but they degrade 
the bench. Such action is judicial electioneering, the most de- 
testable form of demagogy. 

No Judge who has the proper conception of the dignity of the 
office, or of the proprieties which are obligatory on every gentle- 
man, will ever be guilty of lack of consideration for the feelings 
or convenience or comfort of any person who has business be- 
fore his court, I care not how lowly may be the estate of that 
person. 

I astonished a lot of plain people one night from the forests 
of another county outside of my district by staying up till mid- 
night to approve their witness accounts, so that they could take 
the midnight train and be saved twelve hours delay. I heard 
one say to the other: "That Judge in our county would never have 
done this for our class of folks." According to my conception 
of duty, not to have done it, when thirty or more men had left 
families in remote wooded districts unprotected, would not have 
only been discourteous, but inexcusably unkind. 

The custom of making a rule for setting cases and rigidly abid- 
ing by it in a numerical sense is another piece of judicial, or, 
rather, unjudicial, absurdity. 

It was known in the Sixty-first District Court while I presided 
over it that regardless of the position of a case set for the day 
which non-resident counsel were present to try, it was tried first, 
and the same rule applied where there were an unusually large 
number of witnesses in any case, and I never heard any com- 
plaint of such a rule. 

I believe more folly has been perpetrated through the medium 
of special charges than in any other medium of procedure known 
to the law. 

So far as I recall now, I never, save with one exception, gave 
a special charge in a civil or criminal case in my life, and if I 
was ever reversed for refusing to give one, the fact is not re- 
membered now. 

I have been reversed frequently by the Courts of Civil Appeals 
for giving some of my own charges, or parts of them, at least, 
and in all likelihood the courts were often right, but their re- 
versal is by no means conclusive of error, because in more than 
one instance they reversed me in most important cases tried 
without a jury, in which the Supreme Court held I was right. 
The Supreme Court before there were any Courts of Appeals, 
reversed me for errors in my own charges, but never, so far as 
I recall, for refusing a special charge, 

I do not mean that I ignored special charges tendered, for I 



AND OTHER PUBLIC MEN OF TEXAS 299 

did not, but examined them both as a matter of courtesy and 
duty. If they suggested a charge on a point I had overlooked, or 
if the tendered charge was better phrased than my own, I used 
it, but I gave no special charges, because four out of five ought 
not to be given. 

I used a form of charge, in a physical sense, which my brother 
Judges in Houston adopted, and which all Judges will find a 
great time-saver. 

I had the court reporter to have sheets of typewritten paper 
cut in half, and except the formal and indispensable parts of the 
charge each paragraph was written on a separate page, and any 
page not satisfactory to me, or to which well founded objection 
was made by counsel, could be changed, or removed altogether, 
and as much depends on the order of the arrangement of the 
points or paragraphs in a charge, the separate pages pinned to- 
gether at the upper left-hand corner so the pages opened from 
the right to left like a book, could be shifted to secure logical 
order of arrangement in reading the charge to the jury. 

The one exception when I gave a special charge was when my 
mother was dying, and I was waiting for a train. I gave fifteen, 
and the result was that the defendant had no possible chance to 
reverse a substantial verdict, and had to pay it without appeal. 
When I charged a jury I was either very right or very wrong. 
No man needed an interpreter to find out what I meant, and I 
tried to prepare findings of fact and conclusions of law the 
same way. 

I never had a moment's disagreement with an attorney over a 
bill of exceptions, it matters not how strong he made it, if he was 
within the utmost limit of the facts. I never tried to qualify the 
bill so as to avoid responsibility. If I added anything, it was a 
brief explanation of why I so ruled. 

Demurrers and exceptions have been the cause of the waste of 
more good paper, and caused the loss of more valuable time than 
any other plea or proceeding in the courts. Unless an attack 
on a pleading goes to the very core of the case, and questions 
that a case is stated afi"irmatively or defensively, it is a waste of 
time to consider it. If sustained, in most instances the party 
will amend, until he states a recoverable case, or a sustainable 
defense, — thanks to the help of the other side in showing him 
where and how he was wrong. 

When a mass of exceptions were filed I overruled them all 
(unless some one or more seemed to me to l>e materially mer- 
itorious), and charged the jury on the law as it appeared to me 
to be applicable to the facts. 

If I was ever reversed for such action, I do not recall it, and 
I believe I am within the truth when I say that in eighteen years 
I never spent eighteen hours hearing argument on pleading. 



300 GOVERNORS WHO HAVE BEEN 

I suppose there never was a Judge who it was not charged had 
his favorites at the bar, who could expect better treatment than 
could other members, and in one sense the charge is true, but 
in no other. 

Every good Judge does have his favorites, and they are those 
lawyers who never bring a case without knowing what they desire 
and expect to accomplish, and who prepare their pleadings care- 
fully, — and know what they are going to prove, or at least believe 
they can prove, and who have prepared a trial brief on every 
point. 

His favorites are not the lawyers who plead carelessly, and 
who do not know what they can prove, but trust to chance, or sug- 
gestion, and the help of the Judge to get through. 

If the Judge sustains objections to the admission of evidence 
because the pleadings do not authorize its admission, and declines 
to do injustice to the vigilant, diligent lawyer on the other side, 
who comes to the temple of the law, and before its altar, with 
his lamp lighted and full of oil, by helping them out of their 
dilemma, they complain. 

I believe nine Judges out of ten are morally honest, and to say 
that any Judge has favorites, who can expect different and better 
treatment than other lawyers, is to say he will be guided not by 
his oath of office, and his sense of duty, but by his personal 
preferences as between individuals, which is a libel on any Judge 
of whom it is said, and the lawyer who says it is guilty of a 
wrong. If the Judge declines to help the careless, incompetent 
lawyer, the latter is in the fix that the old Judge told a candidate 
for admission to the bar he would be in, when he said he did 
not know much about the common law, but knew about the 
statutes. The old Judge said : "My friend, if the legislature were 
to happen to repeal the statutes, you wouldn't know any law 
at all." 

I recall a case on a contract to sell a piece of property for 
$7000. The defendant made his contract by his agent. Values 
rose and he declined to make the deed. Plaintiff proved a per- 
fect case and rested. Defendant started to introduce evidence 
in defense. Plaintiff objected on the ground that the pleading 
was not under oath, as was required by the statute. Counsel for 
defendant asked for leave to withdraw his announcement of 
ready, so he could amend. Plaintiff objected. I said: "You 
gentlemen (defendant's counsel) are both skillful, experienced 
lawyers. This case is plainly on a written contract made by an 
agent. A perfect case has been proved. Now you want leave 
to stop and start again. To grant your motion would be gross 
injustice to the vigilant, diligent attorneys on the other side. 
Your motion is refused." "What, then, will your Honor do?" 
"I will," I said, "direct the jury to return a verdict for plaintiff," 



AND OTHER PUBLIC MEN OF TEXAS 301 

which I did, and the judgment was affirmed and writ of error 
was refused. 

Had counsel for defendant to that case been young and inex- 
perienced lawyers, so to speak, "on their first feet," I, in all 
likelihood, would have granted their motion, because a Judge is 
perfectly justified in preventing any young and inexperienced 
lawyer from losing a meritorious case because of his inexperience, 
and consequent embarrassment. I had less hesitation in denying 
the motion in the case referred to because the defendant had no 
meritorious defense, but was obviously seeking to prevent com- 
pliance with a plain written contract, because the value of the 
property had materially increased. 

No Judge ever sowed any kind of seed from which he is surer 
to reap a harvest of pleasant memories than by extending a 
helping hand to worthy young and struggling lawyers within 
the limits of judicial propriety and impartiality. 

It is rarely the case that the road they travel is not hard and 
thorny, and they often present the example of modest, but gen- 
uine worth, receiving less financial reward than comes to others 
possessed of both less ability and less principle. 

Many young lawyers begin with divorce cases, and I made it an 
annual custom to set aside a day just before Christmas, which I 
devoted to divorce cases. I called it my "divorce Christmas mat- 
inee," and it enabled many a young fellow to provide himself 
with spending money, — indeed, perhaps, in some cases, urgently 
needed funds, for the holidays, 

I have in mind more than one young man who for no other 
reason except that he was worthy and needed it, I extended a 
helping hand to, and have been abundantly rewarded by the 
pleasure which their marked and continued, and continuing, suc- 
cess gives me. 

I trust no person who does me the honor to read these rambling 
sketches will do me the injustice to think that I mean to set 
myself up as an example of judicial wisdom, or official in- 
errancy, for I have no such thought in mind, and I do not so 
assess myself. I have written for no other reason than that I felt 
that perhaps to set down my experiences during the eighteen 
years of service on the trial bench, and the conclusion drawn 
from those experiences as to the duties of a judge, as they relate 
to the bar, to the people whom the bar represents, to litigants, 
and to all others who come before the court, might not be with- 
out some value. 



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